Maryland Casualty Co. v. Scruggs

• Decision Date: 28 October 1925
• Docket Number: (No. 2536.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: MARYLAND CASUALTY CO. v. SCRUGGS et al.
• Court: Texas Court of Appeals

Page 768

277 S.W. 768

MARYLAND CASUALTY CO. v. SCRUGGS et al.

(No. 2536.)^*

Court of Civil Appeals of Texas. Amarillo.

October 28, 1925.

Rehearing Denied November 25, 1925.

Appeal from District Court, Donley County; R. L. Templeton, Judge.

Suit by the Maryland Casualty Company against George N. Scruggs and another to set aside an award of the Industrial Accident Board. From a judgment for defendants on their cross-action seeking recovery de novo, plaintiff appeals. Affirmed.

Turner, Dooley & Gibson, of Amarillo, for appellant.

W. T. Link, of Clarendon, for appellees.

JACKSON, J.

The Maryland Casualty Company, hereinafter called appellant, instituted this suit in the district court of Donley county, Tex., against George N. Scruggs and wife, hereinafter called appellees, to set aside the award made by the Industrial Accident Board of this state on January 25, 1924, in which award appellees were allowed $10.38 per week for a period of 360 weeks as compensation for the death of their son, George Scruggs, Jr., on the theory that at the time appellees' son was fatally injured he was an employee of the Pierce Oil Corporation, which had prior thereto taken out liability insurance pursuant to the Workmen's Compensation Law, with the appellant.

The appellees answered by cross-action, seeking recovery de novo on account of the death of their son, alleged to have been fatally burned in the performance of his duties as an employee of the Corporation, and that his services were of the value of $18 per week. The Corporation, in compliance with the Workmen's Compensation Law, had secured a policy of insurance with appellant, which was in force at the time of the injury and death of their son.

Appellees alleged that the Corporation was engaged in selling gasoline, kerosene, and other petroleum products to filling stations, garages, retail dealers, and other consumers at Clarendon and other places in Texas, and appellee George N. Scruggs was an employee of said Oil Corporation at Clarendon authorized to look after and care for its business at Clarendon, Ashtola, Lelia Lake, Brice, and Palo Duro, Tex.; that the Corporation contemplated in the employment of George N. Scruggs that it would become necessary at times to employ others as helpers to properly and efficiently conduct its business at said places, and that it was agreed that said George N. Scruggs, acting as the agent and employee of the Pierce Oil Corporation, would, when necessary, employ help, and said Scruggs was authorized, empowered, and permitted by said Corporation to employ help when he deemed it necessary to conduct the business; that in May, 1923, and sundry other times it was necessary to employ help, and George N. Scruggs on said date employed his son to work for the Corporation at Clarendon and the other places, and his duty was to do whatever was necessary to properly and efficiently conduct the business; that during the month of May, 1923, George Scruggs, Jr., worked before and after school on Saturdays and holidays, and about June 1st he began devoting his entire time to the work, all of which was known to said Corporation, and such employment was consented to and ratified by it; that on the 27th day of July, 1923, while actively engaged in the performance of his duties, George Scruggs, Jr., was fatally burned, from the effect of which he died the following day, and his death was the direct, proximate, and immediate result of his employment and service for said Corporation.

Appellees further alleged a custom of the Corporation to employ agents to conduct its business in various towns, with the understanding that it would be necessary that such agents and employees would, in the name of the Corporation and in its behalf, employ others to assist in conducting its business, and that such custom was followed by its agents where it transacted business, and was assented and agreed to by the Corporation, which expected the employment of others by appellee at Clarendon.

Appellant, in reply to appellees' pleading, filed a general demurrer, special exception, general denial, and specially alleged that at and before the accident and death of the boy he was working under and for his father, George N. Scruggs, who then and there stood in the relationship of an independent contractor to the Corporation handling and marketing its products at Clarendon and vicinity under a commission contract, whereby he was required, at his own expense, to furnish the delivery equipment and necessary help, and was free to choose the manner and means of performing such work, and could regulate, at his own discretion, the amount of time he would devote to the work, and was free to engage in other business on his own account, and was not subject to such supervision and control as would render him an employee of the Corporation, and in his capacity as independent contractor he arranged with his son to work for him, and the latter was so working and was not an employee of said Corporation at the time he received his fatal injuries.

Appellant also alleged that George Scruggs, Jr., was not at any time hired or engaged to work for the Corporation; that it had no contract with him, and whatever work he did was pursuant to an arrangement between him and his father without consulting the Corporation, which exercised no direction or control over the boy as to the terms, hours, or other conditions, but he was solely subject to the authority and direction of his father, who was free to dismiss him without consulting with the Corporation, and who was solely responsible for his wages, if any he received, and, if employed by any one, it was his father and not the Corporation.

Appellant also alleges that George Scruggs, Jr., was less than 17 years of age at the time of his death, with very little previous experience in the work or the character thereof, and, unmindful of his immature age and lack of experience, his father had, on his own responsibility, put him to work in and about the premises and property of the Corporation notwithstanding the business consisted of dealing with inflammable and combustible materials, and brought the boy in constant proximity to such combustible and inflammable materials, as well as dangerous machinery such as the pump and engine with which George Scruggs, Jr., was working at the time he was fatally burned, and that George N. Scruggs had kept his son in and about such dangerous work for several months preceding his death, and the hazard thereof was greatly increased on account of the inexperience and immature age of the boy, and that the placing and keeping of the boy at work, under the circumstances, was with the consent and approval of appellee Bessie Scruggs, who was well acquainted with the conditions, and that a man of ordinary prudence would not, under the circumstances, have subjected the boy to such hazards as the work involved, all of which was negligence on the part of appellees, and the proximate cause of the injury and death of their son, and because of such negligence appellees are barred from any recovery against appellant.

The cause was tried below before the court, who rendered judgment in favor of appellees for the sum of $10.38 per week for the full period of 360 weeks, from which judgment appellant has appealed.

The provisions of the written contract between appellee Scruggs and the Pierce Oil Corporation material to the disposition of the case are:

"Pierce Oil Corporation hereby constitutes and appoints G. N. Scruggs as its agent at Clarendon, Tex. (but only for the purposes and subject to the conditions and limitations herein specified) to sell the commodities herein named for it, on commission, as hereinafter specified, effective 20th day of April, 1922, and the said G. N. Scruggs agrees to be responsible and liable to the said Corporation for all loss or damage to commodities delivered to him for sale, occurring by reason of any act or omission on the part of himself or themselves, or any person employed by him or them, and agrees to give bond as required by the said Corporation with a surety company as surety to be designated by said Corporation.

"This agreement and all rights and authorities of the agent may be terminated at any time at the option of said Pierce Oil Corporation without notice."

The contract then names the products to be handled, the price to be received therefor, the commission allowed on sales in bulk, barrels, and carloads, sales to railroads and on transfer deliveries or shipments to or between Pierce Oil Corporation agencies, and stipulates that there shall be no commission on straight carload sales of certain products named, and none on sales to customers that refuse shipments and return the goods, and none on unsalable stock transferred to another agency; that when the agent has been instructed to confine customers to cash deliveries or specified credit rating, and he makes sales on credit in excess of such rating, he assumes all liability for such sales, and the Corporation is allowed to deduct the value of such sales from the agent's commission, and provides that the agent is authorized to sell the commodities only upon such terms and conditions as may from time to time be specified to him by said Corporation; that the commissions as stated shall cover all expenses which may be incurred in making bulk or package deliveries in the proper handling of the business, except drayage to the trade in Clarendon, Ashtola, Brice, Palo Duro and Lelia Lake, and drayage of empties from Brice, for which service specified prices are set out; that no items of expense except as shown in the agreement shall be allowed except when written authority for incurring such expense is first obtained.

"Agent hereby agrees to be responsible to Pierce Oil Corporation for all checks received by him in payment of cash sales. Agent further agrees that title to all records or other property coming into his possession by virtue of...