Lumbermen's Lloyds v. Jones, A-4604

• Citation: 153 Tex. 379,268 S.W.2d 909
• Decision Date: 16 June 1954
• Docket Number: No. A-4604,A-4604
• Parties: LUMBERMEN'S LLOYDS v. JONES et al.
• Court: Supreme Court of Texas

Page 909

268 S.W.2d 909

153 Tex. 379

LUMBERMEN'S LLOYDS v. JONES et al.

No. A-4604.

Supreme Court of Texas.

June 16, 1954.

Rehearing Denied July 7, 1954.

James R. Strong, Carthage and Collins, Garrison, Renfrow & Zeleskey, Lufkin, for petitioner.

Fred Whitaker and L. P. Caston, Carthage, for respondents.

SMITH, Justice.

Respondents filed this suit to recover workmen's compensation benefits. They alleged that their son, Jessie Mayes Jones was accidentally killed on November 30, 1951, while employed by R. A. Corbett, doing business as R. A. Corbett Transport of Lufkin, Texas. Petitioner admitted that the deceased was an employee of R. A. Corbett on November 29, 1951, and had been for a period of two months prior thereto, but alleged in its answer that the deceased changed his employment and began working for A. W. Herpin Truck Line, Inc., on November 30, 1951, the date of his death.

The petitioner filed a motion for an instructed verdict. The motion was overruled, and issues were submitted to a jury. The jury reached the conclusion that the deceased, Jessie Mayes Jones, was an employee of R. A. Corbett, doing business as R. A. Corbett Transport, and was acting in the course of such employment at the time of his death. The jury, in answer to Issues 3 and 4, found that the deceased was not an employee of A. W. Herpin Truck Lines, Inc., and was not acting within the scope of employment for said company on the date of the accident and death.

The petitioner's motion for judgment non obstante veredicto was overruled. Its motion for new trial was likewise overruled.

Petitioner's motion for instructed verdict, motion for judgment non obstante veredicto, and motion for new trial presented its contention that there was no evidence to support the answers of the jury to the effect that the deceased was engaged in the course of his employment and was an employee of R. A. Corbett doing business as R. A. Corbett Transport, and was not engaged in the course of his employment and was not an employee of A. W. Herpin Truck Lines, Inc. The motion for new trial presented the further contention that the trial court erred in excluding from the evidence a lease contract from R. A. Corbett to A. W. Herpin Truck Lines, Inc. covering the truck driven by the deceased at the time of the accident, and also erred in excluding from the evidence a contract between A. W. Herpin Truck Lines, Inc. and Stanolind Oil & Gas Company. This contract was an agreement concerning the transportation of petroleum products within the State of Louisiana. The Court of Civil Appeals for the Sixth Supreme Judicial District held that the trial court committed error by excluding the proffered contracts and reversed and remanded the cause for a new trial. 264 S.W.2d 759.

Both parties have filed a petition for writ of error. This Court granted the petition of Lumbermen's Lloyds. The point upon which the writ of error was granted is, as follows: 'The trial court erred in overruling petitioner's motion for an instructed verdict and the Court of Civil Appeals erred in failing to so hold'. Respondents' petition for writ of error was granted in accordance with this Court's established procedure of granting all petitions in the event one has been granted. Respondents contend that the Court of Civil Appeals was in error in reversing and remanding the case.

For convenience, we shall hereafter refer to the parties as 'Lumbermen's', 'Jones', 'Corbett', 'Herpin' and 'Jessie.'

We sustain Lumbermen's point. Therefore, the point presented by Jones becomes immaterial.

The deceased began working for Corbett about the 15th of September, 1951, and continued in this employment until the end of the day of November 29, 1951. J. D. Rook testified that he was Terminal Manager for Corbett and Herpin, and that a part of his duties was to 'hire' employees for both concerns. R. A. Corbett was the owner of Corbett and was a substantial stockholder in Herpin. Rook employed the deceased, Jessie Mayes Jones, to work for Corbett; that Jessie was hired to drive a truck and that his work was principally performed in Texas, but, that he made a few trips into Louisiana. The evidence further conclusively shows that shortly after entering upon his employment with Corbett a request was made by the deceased that he be employed by Herpin. His reason for the suggested change in employment was the fact that Herpin paid its drivers a 20% commission, whereas, Corbett only paid 17 1/2%; that on several occasions thereafter, the request for transfer or change in employment was renewed; that on the evening of November 29, 1951, Rook called Jessie by telephone informing him that there would be an 'opening' with Herpin the next morning; that Jessie accepted the proposed employment; that he was put on Herpin's payroll, and was paid by Herpin for his services on November 30, 1951; that Jessie appeared the next morning; that he was told...