Lesco Transp. Co., Inc. v. Campbell

• Court: Texas Civil Court of Appeals
• Writing for the Court: CHADICK
• Citation: Lesco Transp. Co., Inc. v. Campbell, 500 S.W.2d 238 (Tex. Ct. App. 1973)
• Decision Date: 09 October 1973
• Docket Number: No. 8154,8154
• Parties: LESCO TRANSPORTATION COMPANY, INC., Appellant, v. Willace C. CAMPBELL, Appellee.

Page 238

500 S.W.2d 238

LESCO TRANSPORTATION COMPANY, INC., Appellant, v. Willace C. CAMPBELL, Appellee.

No. 8154.

Court of Civil Appeals of Texas Texarkana.

Oct. 9, 1973.

Rehearing Denied Oct. 9, 1973.

James H. Holmes, III, Burford, Ryburn & Ford, Dallas, for appellant.

Charles G. Hall, Texarkana, for appellee.

CHADICK, Justice.

This is a venue case. Wallace C. Campbell filed a common law tort action in a district court of Bowie County to recover damages for personal injuries from Samuel Lynn Warren, a resident of Bowie County, Texas, and Lesco Transportation Company, Incorporated, a resident of Dallas County, Texas. Campbell allegedly suffered personal injuries as a result of the negligence of Warren and Lesco Transportation Company, Incorporated at a time when Warren was changing oil in the engine of a truck leased by Warren to such company. Relying upon the provisions of Vernon's Tex.Rev.Civ.Stat.Anno art. 1995, Subd. 4, the trial judge overruled Lesco Transportation Company, Incorporated's plea of privilege to be sued in Dallas, the county of its residence. The corporation, hereafter referred to as Lesco, has appealed.

Lesco contended in the trial court and insists here that Campbell is barred from prosecuting his suit because he was an employee injured in the course and scope of his employment and is by law relegated to the provisions of the Texas Workmen's Compensation Act, Tex.Rev.Civ.Stat.Anno. art. 8306 et seq., for injury compensation. This is the issue in the appeal.

In compliance with stipulations by the parties, the trial judge found as a fact that Campbell and Warren were employees of Lesco at the time Campbell was injured. The record, as also the findings of fact made by the trial judge, established that as owner, both Campbell and Warren had, each by identically worded but separate written instruments pertaining to separate vehicles, leased a truck to Lesco, and each was in a Lessor to lessee relationship, as well as an Employee to an employer relationship with Lesco at the time Campbell was injured. The following passages are a part of each contract, viz:

'DRIVERS' COMPENSATION

(1) * * *

(2) Each such driver shall in the sole and exclusive opinion of Lessee (a) Be a fit and qualified person to drive and operate such leased equipment; (b) Be familiar with and strictly abide by the safety regulations of Interstate Commerce Commission and The Railroad Commission of Texas; (c) Submit to a physical examination; and (d) Comply with the directions of Lessee in the safe and expeditious operation and maintenance of such equipment. (Emphasis added).

'OWNER OF LEASED EQUIPMENT SHALL PAY, OR FURNISH:

(1) Equipment adequately maintained in a condition meeting or exceeding the Lesco standards and equal to, or in excess of the federal and state regulatory boards. (Emphasis added)

(2) * * *

(3) * * *

(4) * * *

(5) * * *

(6) * * *'

It is to be seen by reference to the emphasized portion of the quoted instrument that the owner (lessor) was contractually obligated to maintain the leased trucks in a condition meeting or exceeding Lesco's standards, etc., though the specified standards are not made a part of the written agreement. Likewise, it is to be seen that a driver 'shall in the sole and exclusive opinion of Lessee (Lesco) * * * comply with the direction of lessee in the safe and expeditions * * * maintenance of such equipment.' But the record is devoid of stipulation, evidence or proof of direction from Lesco to either Campbell or Warren concerning change of engine oil or other maintenance upon the respective trucks. Clearly, neither the quoted language of the contract nor any other provision thereof placed a duty upon a driver to maintain a truck by changing the engine oil unless directed to do so by Lesco.

The testimony of both Campbell and Warren detailing their duties as an employee-driver is in part ambiguous, equivocal and self-contradictory. When called upon to unilaterally interpret the driver's contract each had signed, Campbell denied that an employee-driver had a duty to change oil in his truck, and then when pressed, appeared to agree with the cross-examiner that the contract did require the driver to change the oil in the truck. At the same time, Campbell readily acknowledged that as an owner and lessor he was obligated to maintain the truck he let to Lesco by changing engine oil.

By stipulation and evidence, the record shows that both Campbell and Warren signed in with Lesco's dispatcher at a point of origin for material to be hauled, thereby indicating that they were ready to haul material when called under procedures theretofore established. On signing in, a driver's name and truck number was placed at the bottom of the pending list of haulers; the driver to be called when the driver next above had been dispatched. When called, the driver had two hours in which to respond before being relegated to the foot of the line, the only penalty for not answering the call. At the time of Campbell's injury he and Warren had returned from a delivery and signed in and were standing by for a call. Since their loads could be dispatched to any place in Texas, and they might receive long hauls they decided to change the engine oil in their trucks before accepting the expected call.

To be compensable, to come within the terms of Tex.Rev.Civ.Stat.Anno. art. 8306, Sec. 3b, an injury must occur within a period of employment at a place where the employee reasonably may be in performance of his duty. 62 Tex.Jur.2d Workmen's Compensation, ...