Maryland Casualty Co. v. Kent

• Decision Date: 07 March 1928
• Docket Number: (No. 1051-4414.)
• Citation: 3 S.W.2d 414
• Parties: MARYLAND CASUALTY CO. v. KENT et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

3 S.W.2d 414

MARYLAND CASUALTY CO. v. KENT et al.^*

(No. 1051-4414.)

Commission of Appeals of Texas, Section A.

March 7, 1928.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by the Maryland Casualty Company, insurer, to set aside an award of the Industrial Accident Board in favor of Mrs. Clarice Kent and others, claimants, for the death of J. M. Kent. Judgment for claimants was affirmed by the Court of Civil Appeals (271 S. W. 929), and the insurer brings error. Affirmed.

D. Edward Greer and Baker, Botts, Parker & Garwood, all of Houston, for plaintiff in error.

Smith & Lanier, of Jasper, for defendants in error.

NICKELS, J.

The nature of the case is fully exhibited in the opinion of the Court of Civil Appeals. 271 S. W. 929. An important question here is the existence vel non of a relation between Kent (the insured) and Gulf Refining Company (subscriber per the Workmen's Compensation Law), which amounted to that of employer and employé (article 5246 — 82, Vernon's Sayles' Tex. Civ. Statutes 1918 as amended; article 8309, R. S. 1925), wherein it is said that an "employé" is a "person in the service of another under any contract of hire, expressed or implied," etc.

The relation is evidenced by the writing executed by the parties reproduced in the opinion of the Court of Civil Appeals. Per the agreement: (a) The premises and stock of goods (replenished from time to time) at Jasper were the premises and goods of the company, the goods remaining in ownership of the company "until sold." (b) Containers remained the property of the company, even after sale of contents. (c) Proceeds of cash sales of goods were the property of the company, receivable by it from Kent at Houston "weekly"; credit sales were forbidden, save as per new authority given from time to time. (d) Kent became custodian of the premises and goods, with responsibility "for all goods." (e) His active duties were to receive goods "shipped to him," to pay "all drayage and delivery charges," to "sell the goods for cash" (but on credit upon additional authority as given), to "account for all sales" weekly, to remit weekly to the company at Houston "all moneys received by him from sale of above-named goods," to collect all "empty drums and barrels" and "on the 1st day of each month" to "render * * * statement * * * showing in detail the goods on hand." It was provided further: (f) Cash sales were to be made "at prices named" (not originally, but from time to time) by the company. (g) Credit sales were to be made only to parties (then) acceptable to the company and "upon terms" (then) "authorized by it." (h) From "its stock of goods in hands" of Kent the company might make shipments, and as might be ordered by the company Kent would fill orders from that company for 25 cents "per barrel for drayage and clerical work." (i) "Empty drums and barrels" would be "shipped back to the company as ordered." (j) For services provided for, except that of filling orders as mentioned in (h) above, Kent would receive from the company "commissions" measured by named percentages of amounts of "sales" payable "on or about the 1st of each month." (k) The contract was made terminable "upon 10 days' written notice" by either party.

Suppose Kent in possession of the storeroom and given goods on a given day, and without specific directions forecasted, but not provided in the instrument: He could not negotiate a sale, even for cash, for the price observable in making a sale has not as yet been named by the company. Negotiation of credit sales is impossible, for the requisite supplemental authority and terms have not been given. For like reason shipments from the stock, or other disposition, cannot be made. This, with the complete ownership retained in the company at all times, sufficiently indicates both power of control and actual control in great detail by the company. In the situation thus projected, there inhered a relation partaking of or at least akin to that of master and servant (Burton v. G., H. & S. A. Ry. Co., 61 Tex. 526; New Orleans, etc., Ry. Co. v. Hanning, 15 Wall. 649, 21 L. Ed. 220; Singer Mfg. Co. v. Rahn, 132 U. S. 523, 10 Sup. Ct. 176, 33 L. Ed. 442), and wholly alien to that of an independent contractorship (Cunningham v. Railway Co., 51 Tex. 503, 32 Am. Rep. 632; Shannon v. Western Indemnity Co. [Tex. Com. App.] 257 S. W. 522, and cases there cited). It may appropriately be noted that Judge Bonner, in Cunningham v. Railway Co., supra, quoted section 78 of Shearman & Redfield on Negligence by way of illustration, and not by way of holding that the test therein laid down is all-comprehensive or of universal application, and that Judge Stayton, in Burton v. G., H. & S. A. Ry. Co., supra, laid down rules which do not at all consist with that part of Shearman & Redfield's definition, wherein "the supreme choice, control, and direction" is required to touch "the work * * * in all its details."

True it is that Kent's compensation was determinable with reference to a quantitative standard, that he had some discretion as to his hours or quantity of labor, and that he was to furnish...