Liberty Mut. Ins. Co. v. Boggs

• Decision Date: 27 October 1933
• Docket Number: No. 1165.,1165.
• Parties: LIBERTY MUT. INS. CO. v. BOGGS et al.
• Court: Texas Court of Appeals

Page 787

66 S.W.2d 787

LIBERTY MUT. INS. CO. v. BOGGS et al.

No. 1165.

Court of Civil Appeals of Texas. Eastland.

October 27, 1933.

Rehearing Denied December 8, 1933.

Appeal from District Court, Erath County; Sam M. Russell, Judge.

Action by Mrs. Travis G. Boggs and others against the Liberty Mutual Insurance Company, to recover workmen's compensation insurance for the death of Travis G. Boggs, deceased. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Leachman & Gardere, of Dallas, for appellant.

E. C. Gaines, of Austin, and J. A. Johnson, of Stephenville, for appellees.

FUNDERBURK, Justice.

From a judgment awarding recovery of workmen's compensation insurance in favor of Mrs. Travis G. Boggs and child, as beneficiaries of Travis G. Boggs, deceased, the insurance carrier, Liberty Mutual Insurance Company, has appealed.

In conformity to pleadings appropriately tendering issues as to whether Boggs was an employee, and as to whether he was an independent contractor, the court submitted said issues to the jury, whose verdict was that he was an employee and was not an independent contractor.

The first question presented for our determination is whether or not the evidence showed conclusively as a matter of law that Boggs was an independent contractor. Whether the relationship of Boggs to Curtis-Wright Flying Service was that of an employee, or was that of an independent contractor, must be determined from the provisions of the contract, if any, in virtue of which he had possession of, and was operating, the plane which crashed and killed him. The contract was not in writing. Evidence of its provisions consisted largely of the testimony of E. J. Bond, manager at the time of the accident of Curtis-Wright Flying Service, the alleged employer. Relevant portions of Bond's testimony were to the effect that Boggs was an air pilot, known by witness to be such since November, 1930; that in April, 1931, he did his first work for Curtis-Wright Flying Service, which was that of carrying up passengers on short trips, called "local hops;" that three kinds of flying service were done by Curtis-Wright Flying Service, namely, demonstrating aeroplanes, carrying passengers, and instructing student flyers; that for carrying passengers Boggs was paid for the work he did at the rate of $5 per hour; that he made one flight to California to deliver an aeroplane; that this was done for a lump sum of $200, Boggs paying all expenses; that Boggs was paid $10 (and $6 expenses) to fly a plane to Bryan, Tex., to be left there; that, before the first work was done, Boggs made out a written application for employment; that the agreement under which Boggs took possession of the plane and flew to Stephenville on the occasion of the accident was that he was to take the plane out for the purpose of selling it to Miss Eunice Terry, who had previously talked to witness about buying a plane; that the plane was to be sold for a net minimum sum of $1,800 cash to the company, Boggs to pay all expenses whether a sale was made or not, and to have all over $1,800 for expenses and commission.

Other testimony of this witness, with the more important portions italicized, was as follows:

"Q. What instructions did you give him about how many flights he should make, or where he should go, or what he should do in regard to the operation on the trip? A. I did not instruct him regarding how much—how he should fly it, or how he should demonstrate, or where he was to go in order to sell it. He told me he was going to Stephenville.

"Q. You did not give him any instructions whatever? A. I did as to the operations of the air-craft itself.

"Q. In regard to what? A. The dual controls and the Department of Commerce rules.

"Q. He was familiar with those rules? A. Yes, sir.

"Q. As far as he had been—of the flights he was to make, or attempting to control his conduct in Stephenville, wherever he might go, you never attempted to control his actions in that particular? A. Not as far as method he was to use so long as he did not violate any laws.

"Q. Are the methods he used in flying an aeroplane—the only instructions you gave to comply with the department regulation? A. Yes, sir. * * *

"Q. Was it or not any concern of yours as to what he did with the aeroplane here in Stephenville after he left your air port, eliminating violation of the Department of Commerce aeronautic? A. No.

"Q. Did you or not retain any control over his action as to what he should do on arrival in Stephenville? A. No, I retained the control that the laws had over an aeroplane that Curtis-Wright owned.

"Q. That was as far as the aeroplane was concerned. Did you reserve the right to dictate to him what he should do, or tell him what he should do, after he got here? A. None whatever, with the exception of his complying with the rules pertaining to the Department of Commerce that I discussed with him before he left.

"Q. As far as you were concerned, he could demonstrate to others and Miss Terry? A. Yes, sir.

"Q. Please state whether or not as far as the operation of the plane was concerned it was out of your hands, except for the violation of the Department of Commerce rules? A. Travis was one hundred miles away from me with the aeroplane and I had no control of what he might do. It was physically impossible. * * *

"Q. Was anything said about when he should come back, when he left? A. I do not remember the exact discussion but he wasn't to stay out here longer than was necessary to determine whether or not he could make the sale. He wasn't to keep my aeroplane indefinitely. * * *

"Q. I will ask you if Travis had the right to carry passengers in that plane while he was here. * * * A. I expect he did.

"Q. Did you have the right or authority by reason of the contract and business relations with him—did you have the right and authority to direct him not to carry passengers on that trip? A. Yes. * * *

"Q. Did you do it? A. I did not outline to Travis what he was to do. * * *

"Q. You had the right on that trip to direct Travis not to carry passengers if you desired to do so? A. The subject did not come up.

"Q. You had the right to do it? A. I had the right to do anything with reference to that particular aeroplane.

"Q. You did not give him those instructions, did you? A. No sir.

"Q. Did you have the right after Travis came over here with that plane to direct him not to teach flying lessons to anybody? A. Yes.

"Q. Did you direct Travis not to teach flying lessons? A. I directed Travis specifically —I had quite a conversation—under no circumstances to permit anyone to ride in that plane when it had the dual controls. * * *

"Q. * * * Did you have the right to ask him not to teach flying lessons to any one on that trip? A. Yes. * * *

"Q. * * * Did you specifically instruct Travis not to teach flying lessons to anyone on that trip? A. No. * * *

"Q. You had the right to do it, but you didn't do it? A. Yes, sir. * * *

"Q. You knew that he expected to undertake to sell that plane to Miss Eunice Terry over here? A. I did. * * *

"Q. You knew that she had a student's permit? A. Yes, sir. * * *

"Q. You knew that under what is understood to be the rules of the Interstate Commerce Commission that Miss Terry then had perfect right—she had perfected the time for license—as a student in that respect, did you? A. Yes, sir.

"Q. Did you know whether was anything said about Travis taking up anybody else in that plane when he left? A. No, sir.

"Q. Did you know when he left whether he would or would not? A. I did not.

"Q. Had you instructed him not to take up anybody else? A. I had instructed him to let no one ride in that aeroplane without a student's permit.

"Q. Why had you instructed him to permit no one to ride in that plane * * * without a student's permit, unless you expected him to ride somebody else in that plane, besides Miss Terry, whom you knew had a student's permit? * * * A. For the same reason that I had been instructing all pilots that worked for me since I had undertaken—up until that date and ever since.

"Q. I do not believe you get my question, Mr. Bond. You have stated that you knew Miss Terry had a student's permit? A. Yes, sir.

"Q. And that she had a right to take flying lessons? A. Yes, sir.

"Q. As a student? A. Yes, sir.

"Q. Now, you wouldn't have given him any such instructions with reference to her would you? A. It was discussed that she was going to ride in the aeroplane, which was understood. * * *

"Q. You knew that she had a permit? A. Yes.

"Q. Therefore, you did not instruct him not to take her up without removing the dual controls, did you? A. That's right.

"Q. You were expecting that he might take others than Miss Terry up for instruction? * * * A. I expected anything. * * *

"Q. Just state whether you did or did not expect that he do it. A. I did not know but what he might have, yes. * * *

"Q. You consider that you had the right to tell Travis what he could do or went with the plane? A. Yes.

"Q. Did you consider that you had the right under your arrangement with him when he must bring the plane back? A. Yes.

"Q. * * * That you had the right to tell him what kind of flying service he might do while he was gone? A. Yes, sir. * * *

"Q. Did he tell you whether or not he was going to do other work with that aeroplane? A. No, sir.

"Q. Did he agree or not that if he did do other work that the money would be given to Curtis-Wright Flying Service for that work done? A. We did not discuss it.

"Q. Did you know that he was going to do anything like that? A. I did not know what he was going to do.

"Q. As far as you were concerned he took the aeroplane for the purpose of a sale, and sale alone? A. Yes, sir, and demonstration. * * *

"Q. Mr. Bond, after Travis was killed that night, did you meet Mr. Boggs, his father, here in town? A. Yes, sir. * * *

"Q. I will ask you if you did not say to him * * * tell him that you sent Travis a...