Security Union Ins. Co. v. McLeod

• Decision Date: 18 March 1931
• Docket Number: No. 1234-5610.,1234-5610.
• Parties: SECURITY UNION INS. CO. v. McLEOD.
• Court: Texas Supreme Court

36 S.W.2d 449

SECURITY UNION INS. CO. v. McLEOD.

No. 1234-5610.

Commission of Appeals of Texas, Section B.

March 18, 1931.

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

Action by A. M. McLeod against the Security Union Insurance Company to set aside an order denying compensation under the Employers' Liability Law. A judgment for defendant was reversed and the cause remanded for a new trial by the Court of Civil Appeals [22 S.W.(2d) 952], and defendant brings error.

Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.

Charles Gibbs and Glenn R. Lewis, both of San Angelo, for defendant in error.

RYAN, J.

This is a suit arising under the Workmen's Compensation Act (Vernon's Ann. Civ. St. arts. 8306-8309) and involves a claim for compensation by A. M. McLeod for injuries alleged to have been received by him on or about April 24, 1928, while, as he alleges, he was working for L. E. Whitham & Company.

The trial court held that under the undisputed testimony, McLeod was not an employee of Whitham & Company but was an employee of J. L. Menefee, a hauling contractor, and instructed a verdict for plaintiff in error, Security Union Insurance Company, and against McLeod, upon which judgment was accordingly entered.

The Court of Civil Appeals reversed that judgment and remanded the cause for a new trial, holding that there was sufficient evidence to raise an issue for the jury as to whether McLeod was an employee of Whitham & Company or of J. L. Menefee. 22 S.W. (2d) 952.

The evidence shows that J. L. Menefee was a hauling contractor in the city of San Angelo and owned a fleet of six trucks; Menefee drove one of the trucks and employed the drivers for the other trucks. He had a contract with Whitham & Company, paving contractors, to haul gravel for them from a pit located on property of Theo Montgomery, some four or five miles from San Angelo, to the point in the city where the gravel was needed. McLeod was employed and paid by Menefee and boarded at Menefee's house. The truck he drove was owned by Menefee, who paid all expenses incident to its upkeep and maintenance. Menefee employed all the drivers of the trucks owned by him and used in the performance of his contract for hauling for Whitham & Company. Said trucks were kept at Menefee's house and all of the truck drivers boarded with him.

McLeod testified that his contract of employment was with Mr. Menefee, and would be paid $60 a month and board, estimated at $40 or $100 a month. If he lost four or five days a month Menefee agreed to pay him at the rate of $3.30 a day for the days he hauled and charge him $1.33 a day for board, and pay $2 a day "for the days we hauled." Menefee was hauling gravel for Whitham & Company, and not for any one else. He testified further that Menefee once told him that so long as he pleased Whitham & Company he would have a job, and if he did not please Whitham & Company he (Menefee) would turn him off.

The Court of Civil Appeals found that Whitham & Company could not discharge any one from the general employ of Menefee, but that the evidence is sufficient to support a finding that they reserved and exercised the right to exclude from the work any truck driver who failed to satisfy them, and that this was tantamount to discharge from the particular employment whether there was a discharge generally from Menefee's employ, or not.

The testimony further shows that on April 24, 1924, when the injuries were received, McLeod was driving a truck owned by Menefee, back from the gravel pit to the home of Menefee to store it there until the next day, having been told, when he went to the gravel pit, that no hauling would be done that day; it was on his return home to Menefee's residence, with the truck, that his injuries occurred when he ran off the road. The testimony further shows that on that day,...