National Cash Register Co. v. Rider
Decision Date | 12 February 1930 |
Docket Number | (No. 1132-5411.) |
Citation | 24 S.W.2d 28 |
Parties | NATIONAL CASH REGISTER CO. et al. v. RIDER. |
Court | Texas Supreme Court |
Suit by Marshall Rider against the National Cash Register Company and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals , and defendants bring error. Reversed and remanded.
Tomas G. Pollard, of Tyler, and Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for plaintiffs in error.
Tom B. Ramey, Jr., of Tyler, for defendant in error.
The statement and result of the trial of the case, by the Court of Civil Appeals, is as follows:
The first assignment in the application for the writ of error relates to the alleged error of the Court of Civil Appeals sustaining the action of the trial court in its refusal to instruct the jury to return a verdict in favor of the National Cash Register Company, based upon the proposition that the evidence was not sufficient to support a finding that the plaintiff in error, Weeks, was an employee of that company. We sustain this assignment.
The defendant in error introduced Weeks as a witness, and his testimony is only partially set out in the opinion of the Court of Civil Appeals, and upon the testimony copied in the opinion the Court of Civil Appeals held that Weeks was an employee of the company, and necessarily held that he was not an independent contractor. The statement of this witness to the effect that he was an employee of the National Cash Register Company and that he was so employed at the time of the collision, from which the damages sought to be recovered resulted, standing alone and unexplained, is sufficient, prima facie, to establish the allegation in the plaintiff's petition that Weeks was an employee of the National Cash Register Company, notwithstanding the fact that this statement is a statement of a conclusion of law rather than a statement of fact, since no objection was interposed to its introduction at the time the testimony was offered. However, it further appears from the testimony of this witness, brought out upon cross-examination, that under the rules of law, which we shall discuss hereafter, this conclusion of the witness was erroneous. This explanatory testimony is unassailed in the record, though it could have been, even though the witness was introduced by the defendant in error, inasmuch as the witness was one of the adverse parties. Being unassailed, and being in harmony with the remainder of the testimony, it must be accepted as true in determining the question under discussion.
In every case which turns upon the nature of the relationship between the employer and the person employed, the essential question to be determined is whether the employer had the right to exercise control over the details of the work. 19 A. L. R. 240; King v. Galloway (Tex. Com. App.) 284 S. W. 942, 944. Weeks testified, among other things: That Weeks was paid upon a commission basis is not necessarily a material fact in this case. In Cunningham v. Railway Co., 51 Tex. 510, 32 Am. Rep. 632, the Supreme Court of this state says on this subject: In Cunningham v. Moore, 55 Tex. 377, 40 Am. Rep. 812, this rule has been reaffirmed. In Wallace v. Southern Cotton Oil Co., 91 Tex. 21, 40 S. W. 399, the defendant in error was held liable by reason of the fact that the company exercised authority over the contractor. The defendant in error alleged, as it was necessary for him to do, that Weeks was an employee of the National Cash Register Company at the time the collision occurred. It was equally necessary that the defendant in error should at least introduce sufficient testimony to show, prima facie, the truth of this allegation.
It appears in the well-written opinion of the Court of Civil Appeals, speaking through Judge Brady, in the case of United States Fidelity & Guaranty Co. of Baltimore, Md., v. Lowry, 231 S. W. 818, 821, the case upon which the defendant in error most strongly relies, this testimony from the witness Mrs. Lowry, in speaking of what the employer did with reference to the business between the employer and Mr. Lowry, the alleged employee, who was killed, and on account of which Mrs. Lowry applied for compensation, under the Workmen's Compensation Act: "Mr. Lowry often wrote Tom Padgitt [the alleged...
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