Shannon v. Western Indemnity Co.

• Decision Date: 23 January 1924
• Docket Number: (No. 484-3879.)
• Parties: SHANNON et al. v. WESTERN INDEMNITY CO. et al.
• Court: Texas Supreme Court

Page 522

257 S.W. 522

SHANNON et al. v. WESTERN INDEMNITY CO. et al.

(No. 484-3879.)

Commission of Appeals of Texas, Section A.

January 23, 1924.

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

Proceeding under the Workmen's Compensation Act by Leila B. Shannon and another for the death of T. J. Shannon, claimants, opposed by the Western Indemnity Company, insurer, and another. After award of compensation insurer sued in the district court to set it aside. Judgment for claimants was reversed and rendered by the Court of Civil Appeals (242 S. W. 774), and they bring error. Judgment of Court of Civil Appeals affirmed.

McReynolds & Hay and Head, Dillard, Smith, Maxey & Head, of Sherman, for plaintiffs in error.

E. C. Gaines, of Austin, and Wood, Jones & Wood, of Sherman, for defendants in error.

GERMAN, P. J.

There is one question of law to be decided in this case. The material facts are not in dispute. Plaintiffs in error, Leila B. Shannon and Forrest Shannon, are the surviving wife and minor child of T. J. Shannon, deceased. T. J. Shannon was a carpenter, and in November, 1920, was in the employment of the Lyon Planing Mill. He owned a surfacing machine which was used in polishing floors, and which was operated by electricity. Under his contract with the Lyon Planing Mill he had the right to be released from service with the mill and to engage in the work of surfacing floors, or similar work, when he had the opportunity to do so. His wages with the planing mill were $7 per day, and when he was operating the surfacing machine in doing work for others he charged $2.50 per hour. Of this sum he paid one Pennington $1 per hour for paper used in doing the surfacing and for the privilege of being released from employment at the mill. He kept the surfacing machine at his home, and did not let it for use to others. When doing work with it he hauled the machine to and from his home at his own expense. He did most or all of the work with the machine himself, but had the right to employ his own help, if necessary. J. A. Simmons who was a general contractor, had a contract with the American Bank & Trust Company in Sherman, Tex., to remodel and do repairing work on the bank building. Some time prior to beginning this work Simmons spoke to Shannon about doing some surfacing work at the bank and Shannon stated that he would do the work. There was never any contract or agreement between Simmons and Shannon as to what particular work was to be done or what Shannon was to be paid for the work. Simmons merely understood that he was to pay the usual charges for such work. On November 18, 1920, in response to a telephone call made at the planing mill, Shannon went to the bank and began the work of surfacing the directors' room, doing the work in his own way, with no assistants and with no directions or suggestions from any one, except that Simmons pointed out to him the directors' room as the one he wanted surfaced. Simmons testified that he had no agreement with Shannon as to how the work was to be done, or what he was to be paid, and that no one exercised any control or direction over Shannon as to the means, methods, or manner of doing the work; that he had no control over the work or the method of doing same, except to accept or reject it when completed. The work done by Shannon was accepted by Simmons and the architect. At about the time Shannon completed the work on the directors' room, Simmons told him that was all that he wanted done, and that they would not use the machine on any other rooms. After completing this work while detaching his machine from the electric wires, Shannon was killed, presumably by coming in contact with an electric current. After the death of Shannon, Simmons paid Mrs. Shannon $50 as the amount due for 20 hours of work at $2.50 per hour, and later placed Shannon's name on his payroll for the month of November. At the time of Shannon's death Simmons was a subscriber within the meaning of the Workmen's Compensation Act and had a policy of insurance for the benefit of his employés.

Plaintiffs in error are claiming that at the time Shannon was killed he was an employé of J. A. Simmons and they are thereby entitled to compensation under the indemnity policy. The district court of Grayson county held that he was an employé and gave judgment in favor of plaintiffs in error in a lump sum for the compensation allowed by law. This judgment was reversed and rendered by the Court of Civil Appeals at Texarkana. 242 S. W. 774.

The one question for our determination is, Was Shannon at the time of his death an "employé" of J. A. Simmons in the meaning of the Workmen's Compensation Law? Section 1 of part 4 of said law provides:

"Employé shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written." (Vernon's Ann. Civ. St. Supp. 1918, art. 5246—82.)

We think the term "employé" as used in this act may be said to have a broader and more liberal meaning than the word "servant," as that term has been generally understood, in this, that it was intended to include all those in the service of another whether engaged in the performance of manual labor, or in positions of management and trust, and whether being paid wages or a salary, so long as they remained under the ultimate control of the employer. However, whatever the position occupied by the person employed, he must, in order to come within the provisions of the law, be "in the service of another." This makes it necessary to look beyond the mere language of the statute and to determine the import of the words "in the service of another" in accordance with recognized legal standards and definitions. The authorities seem to be practically in accord in holding that to constitute one an "employé" in the meaning of the compensation laws, there must exist between the parties the relation of master and servant, in the broad sense that the one has the right of ultimate control and direction over the other. When one is employed by another, it may be generally said to be in the relation of servant to master, or as an independent contractor. This being true, the courts in nearly every instance have undertaken to determine the relation of the person employed by another by first deciding whether or not such person was an independent contractor. If he was found not to be such under all the facts and circumstances, then he was classed as a servant or employé of his employer. If, under the facts and circumstances of this case, Shannon is found to be an independent contractor, as tested by the recognized legal rules and standards defining that relation, it follows as a matter of course that he was not an employé of Simmons.

A very able and exhaustive annotation of the authorities bearing upon the question of who is an independent contractor will be found in volume 19, A. L. R., pages 1168 to 1361, and volume 20, pages 684 to 808. We have found this discussion helpful and instructive, and heartily commend it to those who desire to study this subject.

An "employé" has been held to be "one who works for and under the control of his employer." Employers' Indemnity Co. v. Kelly Coal Co., 149 Ky. 712, 149 S. W. 994, 41 L. R. A. (N. S.) 963. In the case of Cunningham v. Railroad Co., 51 Tex. 510, 32 Am. Rep. 632, in discussing the difference between the two relations of master and servant and employer and independent contractor, the court said:

"In the first relation, that of master and servant, the master has the right to direct the conduct of the servant and the mode and manner of doing the work, and hence his corresponding liability for an improper execution of the same. * * * `He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details.'"

It is said by Street on Personal Injuries, §§ 11, 112:

"No better test can be applied than to say that the relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished by the employment of another, but as well the means and details of its accomplishment; `not only what shall be done, but how it shall be done.'"

It is possible there are situations arising under the Compensation Law where these definitions would be regarded as too restrictive, but we are using them by way of demonstrating more clearly the position occupied by Shannon, which we think was unquestionably that of an independent contractor.

The courts have formulated many definitions of the term "contractor." When analyzed there is but little difference in their substantial meaning. Among the many definitions we think the following is perhaps the most accurate and expressive:

"A contractor is any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting...