Millers' Indemnity Underwriters v. Patten

• Decision Date: 25 April 1923
• Docket Number: (No. 422-3784.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 250 S.W. 154
• Parties: MILLERS' INDEMNITY UNDERWRITERS v. PATTEN et al.
• Court: Texas Supreme Court

Page 154

250 S.W. 154

MILLERS' INDEMNITY UNDERWRITERS v. PATTEN et al.

(No. 422-3784.)^*

Commission of Appeals of Texas, Section A.

April 25, 1923.

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

Action by the Millers' Indemnity Underwriters against Maggie May Patten and others, to set aside an award of the Industrial Accident Board allowing compensation for the death of W. H. Patten, deceased. Judgment for defendants was affirmed by the Court of Civil Appeals (238 S. W. 240), and plaintiff brings error. Affirmed as recommended by the Commission of Appeals.

Harry P. Lawther, of Dallas, for plaintiff in error.

A. T. Cole, of Clarendon, for defendants in error.

GERMAN, J.

Millers' Indemnity Underwriters, plaintiff in error, brought this suit against Mrs. Maggie May Patten and her children, defendants in error, to set aside an award of the Industrial Accident Board, which allowed compensation to defendants in error as the wife and children of W. H. Patten, deceased. A trial of the case in the district court of Hall county, Tex., resulted in a judgment for defendants in error, awarding compensation in weekly installments for 360 weeks. The Court of Civil Appeals at Amarillo affirmed the judgment of the trial court. 238 S. W. 240. W. H. Patten was killed in the course of his employment while working at a gin situated at Brice, Hall county.

The sole question presented for decision is whether or not Patten, at the time of the accident which resulted in his death, was an employé of the Memphis Cotton Oil Company, in contemplation of the Workmen's Compensation Act (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246 zzzz), that company having at the time a policy written by plaintiff in error providing compensation for its employés under the provisions of the Compensation Law. The trial court and the Court of Civil Appeals decided this question upon a finding of the jury that Patten was not a partner with the Memphis Cotton Oil Company, and therefore was an employé of that company; the defense set up by plaintiff in error being that he was a partner, and therefore not entitled to compensation under the provisions of the policy and the law.

The petition for writ of error is based solely upon the contention that the evidence conclusively showed that Patten was a partner with the Memphis Cotton Oil Company in the operation of the Brice gin, that the trial court erred in instructing the jury upon that issue, and that the finding of the jury was contrary to the law and the evidence. It is claimed that the testimony of F. U. Foxhall, president of the Memphis Cotton Oil Company, is uncontradicted, and is all the evidence showing the terms of the contract and the relation between Patten and the company. The Court of Civil Appeals held that the evidence was conflicting upon the issue of partnership, but, in view of the disposition we make of the case, it may be conceded that the testimony of Foxhall is uncontradicted.

Briefly, the controlling facts as testified to by Foxhall are these: The Memphis Cotton Oil Company is a corporation, and was the owner of seven acres of land in Hall county, on which was located the Brice cotton gin, a residence, and other improvements. Foxhall, as president of the oil company, in July and August, 1919, carried on negotiations with W. H. Patten with reference to operating the gin and acquiring an interest in the plant. About the middle of August, 1919, these parties made an oral agreement, by the terms of which Patten was to buy a one-third interest in the gin property for a consideration of $2,200. Patten was to give his notes for this amount, with the understanding that, if there were any net profits from the operation of the gin, a one-third of such net profits was to be applied as payment on the principal and interest of these notes. If the notes were ever paid Patten, in this way, would acquire an interest in the plant. If there were no net profits, no payments were to be made, and Patten, of course, would acquire no interest. It was also agreed that Patten was to run the gin, and have control of its operation, with authority to employ help, make repairs, etc., for which he was to receive a salary of $100 per month. In pursuance of this agreement, about August 16, 1919, Patten moved with his family into the house situated on the seven acres of land, employed labor, repaired the gin, and began operating the same, doing a part of the manual labor himself, his duties, among other things, being to run one of the ginstands. All expenses thus incurred were paid by the Memphis Cotton Oil Company. On October 16, 1919, while Patten was working at one of the ginstands, he was caught in the line shaft, and received injuries from which he shortly died.

Foxhall also testified that a resolution was prepared and signed by the directors of the Memphis Cotton Oil Company authorizing him to sell a one-third interest in the plant to Patten; that he had a deed prepared, which he executed, and notes were prepared for Patten to sign. The deed had not been delivered nor the notes executed at the time Patten was killed. Shortly after Patten's death the Memphis Cotton Oil Company paid Mrs. Patten $200, the amount due for the two months' services of her husband, and the deed and notes were destroyed by Foxhall.

The Memphis Cotton Oil Company was to advance all money necessary to pay for repairing the gin and operating the same, including the salary of Patten. This company kept an account against the Brice Gin Company, to which were charged all amounts advanced in carrying on the business. This account was to be credited with amounts received from the business. If anything remained of the proceeds from the enterprise, after refunding all amounts paid out by the oil company, it would be treated as net profits. Foxhall testified that,...