Norwich Union Ins. Co. v. Chancellor

• Decision Date: 25 April 1928
• Docket Number: (No. 916-5003.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Norwich Union Ins. Co. v. Chancellor, 5 S.W.2d 494 (Tex. 1928)
• Parties: NORWICH UNION INS. CO. v. CHANCELLOR.
• Court: Texas Supreme Court

Page 494

5 S.W.2d 494

NORWICH UNION INS. CO. v. CHANCELLOR.

(No. 916-5003.)^*

Commission of Appeals of Texas, Section B.

April 25, 1928.

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

Action by the Norwich Union Insurance Company against W. A. Chancellor. Judgment for plaintiff was reversed by the Court of Civil Appeals (2 S.W.[2d] 495), and plaintiff brings error. Reversed, and judgment of trial court affirmed.

Garrett, Brownlee & Goldsmith, of Austin, for plaintiff in error.

King & York, of Austin, for defendant in error.

SPEER, J.

The case is thus stated by Justice Blair of the Court of Civil Appeals (2 S. W.[2d] 495):

"Appellee sued in the manner provided by statute to set aside an award of the Industrial Accident Board in favor of appellant for loss of an eye, which, he alleged, resulted from an injury sustained while in the employ of H. E. Wattinger, who was under contract to construct three buildings in connection with the State Feeble-Minded Colony, at Austin, and insured at the time by appellee, under provision of the Workmen's Compensation Act (Rev. St. 1925, art. 8306 et seq.). Appellee resisted the claim and pleaded that Wattinger sublet the particular work at which appellant was engaged when injured to one J. R. Morris, an independent contractor, who employed appellant, and therefore he was not covered by the policy issued by appellee to Wattinger. Appellant replied that, if Wattinger sublet the work, which he denied, he still retained control of it, and that Morris and all his employees were under orders and control of Wattinger in doing the actual work of construction, and further pleaded that the contract between Wattinger and Morris was made in fraud of his right to compensation.

"The jury was asked to find, first, if Morris was an independent contractor; and, second, if the contract between Wattinger and Morris was executed in fraud of appellant's right to compensation. The jury answered the first issue in the affirmative, and the second in the negative, and upon these answers the court rendered judgment for appellee."

The Court of Civil Appeals reversed the judgment and remanded the cause for another trial upon the grounds that the trial court erred in placing the burden upon the defendant, W. A. Chancellor, to show by a preponderance of the evidence that Morris was not an independent contractor, and that the explanation accompanying the charge, defining the effect of the contract between Wattinger and Morris with respect to the issue of independent contractor, was erroneous. 2 S.W.(2d) 495.

We are of the opinion the judgment of the trial court should have been affirmed by the Court of Civil Appeals for the following reasons:

Under the Workmen's Compensation Act it was indispensable that defendant in error prove that he was an employee of Wattinger, the original contractor with the...