Southern Underwriters v. Hodges

• Decision Date: 16 May 1940
• Docket Number: No. 2236.,2236.
• Citation: 141 S.W.2d 707
• Parties: SOUTHERN UNDERWRITERS v. HODGES.
• Court: Texas Court of Appeals

141 S.W.2d 707

SOUTHERN UNDERWRITERS v. HODGES.

No. 2236.

Court of Civil Appeals of Texas. Waco.

May 16, 1940.

Rehearing Denied June 20, 1940.

Error from District Court, Ellis County; A. R. Stout, Judge.

Suit under the Workmen's Compensation Act by the Southern Underwriters against Mrs. H. B. Hodges to set aside an award of the Industrial Accident Board, consolidated with an action by Mrs. Laura M. Hodges against the Southern Underwriters to set aside an award of the Industrial Accident Board. To review a judgment for Mrs. Laura M. Hodges, the Southern Underwriters brings error.

Affirmed.

Will R. Saunders, Henry D. Akin, and W. E. Johnson, all of Dallas, for plaintiff in error.

Bailey & Shaeffer and George McHam, all of Dallas, for defendant in error.

TIREY, Justice.

This is a workmen's compensation case. H. B. Hodges, an employee of B. F. Walker, was killed as the result of an automobile accident in Andrews county, Texas, while returning from Odessa, Texas, to Hobbs, New Mexico. Mrs. H. B. Hodges, the putative wife of the deceased, and Mrs. Laura M. Hodges, mother of the deceased, each filed notice with the Industrial Accident Board of Texas for compensation. The Industrial Accident Board made an award in favor of Mrs. H. B. Hodges. The Southern Underwriters, the compensation carrier, perfected an appeal by filing suit in the district court of Andrews county. The Industrial Accident Board denied the claim of the mother, Mrs. Laura M. Hodges, and she likewise perfected an appeal by filing suit against the Southern Underwriters in the district court of Andrews county. The suits in Andrews county were transferred by agreement to the district court of Ellis county, where the same were consolidated under one number and style. On the trial in the district court of Ellis county, the court instructed the jury to return a verdict against Mrs. H. B. Hodges, the putative wife, in favor of Mrs. Laura M. Hodges, the mother of the deceased, and in favor of the Southern Underwriters as to the said Mrs. H. B. Hodges. On motion of the Southern Underwriters, its cause of action was non-suited and dismissed without prejudice to the cross-action of Mrs. H. B. Hodges and Mrs. Laura M. Hodges. On the verdict of the jury, judgment was entered in favor of Mrs. Laura M. Hodges against the Southern Underwriters for 360 weeks' compensation, at $20 per week. Judgment was further rendered that Mrs. H. B. Hodges recover nothing against Mrs. Laura M. Hodges and the Southern Underwriters. The Southern Underwriters, plaintiff in error, has perfected this appeal against Mrs. Laura M. Hodges, defendant in error.

Owing to the fact that the major question at issue in this appeal is whether H. B. Hodges, at the time he was injured, occupied the status of a Texas employee of B. F. Walker, we deem it vital to make a comprehensive statement of the facts in this case. The case was tried before a jury partly upon an agreed statement of facts and partly upon testimony adduced. It appears from the stipulation that (1) B. F. Walker, the employer, is a trucking contractor, his business being confined to the various oil fields in Oklahoma, Texas, New Mexico, and Louisiana; (2) that he utilizes a large number of trucks and other oil field equipment in his business and employs a large number of men; (3) that in 1929 he employed H. B. Hodges as a mechanic and driver for work in the state of Oklahoma; (4) that Hodges remained in Walker's employment in Oklahoma until some time prior to 1933, when the Oklahoma work was finished, and Walker brought Hodges with him to Houston, Texas, where Hodges continued to work as an employee as mechanic and driver; (5) that in the latter part of 1933, Walker moved Hodges to Odessa in Ector county, where a new oil field was located, and where Walker established headquarters for Hodges in Odessa and placed him in charge of the operations there as truck pusher; (6) that Walker's trucks in that area were equipped with both Texas and New Mexico licenses and the car furnished by Walker to Hodges for his use was likewise equipped with both Texas and New Mexico licenses; (7) that Hodges remained at Odessa for a period of 7 or 8 months, and when the business slowed up at Odessa and the oil development became more active in and near the town of Hobbs, New Mexico, Walker moved Hodges from Odessa, Texas, to Hobbs, New Mexico; (8) that Hodges' salary was increased when he moved from Odessa to New Mexico; (9) that Hodges established his residence at Hobbs, New Mexico, received his mail there and continued his residence there until the time of his death in July 1936; (10) that the records of the New Mexico operations were kept separate and apart from the Texas operations, and that the employees in New Mexico were listed separately from the Texas employees; (11) that B. F. Walker carried a policy of workmen's compensation insurance under the New Mexico law with the Maryland Casualty Company, and that H. B. Hodges was reported and carried with the Maryland Casualty Company on the payroll reports in the Walker office at Hobbs, New Mexico; (12) that B. F. Walker carried compensation insurance in Texas, but that B. F. Walker never at any time reported to the Southern Underwriters, the Texas carrier, that H. B. Hodges was an employee, and no premiums were paid to the Southern Underwriters on the wages being earned by Hodges at and for more than a year prior to the time of his death in July 1936; (13) that while H. B. Hodges was so living and residing at Hobbs, New Mexico, in the employ of B. F. Walker, his duties required him to go into the state of Texas, across the state line, but such trips and visits into the state of Texas were not permanent in nature and character, and after the trips had been completed, Hodges would return to Hobbs; (14) that on the morning of the 28th day of July, 1936, Hodges left Hobbs in an automobile furnished to him by Walker for use in his master's business and licensed in the states of New Mexico and Texas, and went to the city of Odessa in Ector county, Texas, for the purpose of ordering material and supplies for his master, which he could not obtain in the state of New Mexico; (15) that while on the return trip to Hobbs from Odessa, and while in Andrews county, Texas, the car that Hobbs was driving collided with a truck and Hodges received injuries in such collision and a short time thereafter he died in a hospital in Ector County, Texas; (16) that for at least two and one-half years prior to the time of his death he was steadily employed in New Mexico and lost no appreciable time during that period, that at the time of his death Hodges was drawing a salary of $165 per month; and (17) that the foregoing stipulation was not to be construed as an agreed case but both plaintiff and defendant reserved the right to introduce testimony in addition thereto and the cause was to be determined by the trier of the facts in the light of the stipulation and the evidence adduced by the parties, the inferences from the stipulation to be considered in the light of the other evidence, if any, introduced by the parties. It further appears from the uncontroverted testimony that (a) while Hodges was at Odessa (maintaining his headquarters at a tourist camp), in charge of the operations there, the trucks of B. F. Walker were operating in both Texas and New Mexico and Hodges was in charge of the same; (b) that when business slowed down at Odessa and the activity became greater near Hobbs, Walker caused a camp to be established at Hobbs and directed Hodges to remove his headquarters from Odessa, Texas, to the Walker camp at Hobbs, New Mexico; (c) that Hodges, after removing to Hobbs, was doing the same character of work that he was doing at Odessa, and that his work at Hobbs required him to make trips into Texas once or more a week, and that on some of these trips to Texas he would have to remain in Texas for as long as three days at a time; (d) that after Walker came to Texas he maintained his office in Houston, Texas; (e) that Hodges had charge of the payroll at Odessa and Hobbs and hired and fired the men and did the things that B. F. Walker would have done had he been present in furtherance of his master's business; that the Southern Underwriters, the compensation carrier, issued a Texas standard policy covering injury or death under the terms and conditions of the workmen's compensation employers' liability law; that Item 3 of the policy, as to the location of operations, among other things, provided: "Locations of all factories, shops, yards, buildings, premises or other work place of this subscriber, be town or city, with street and number Houston and elsewhere in Texas" and that defendant in error elected to claim compensation as a Texas employee.

The plaintiff in error's assignments Nos. 1 to 5, inclusive, attack the judgment of the trial court on the ground that the facts show, as a matter of law, that H. B. Hodges was not a Texas employee at the time he was injured, or that he did not occupy the status of a Texas employee of B. F. Walker, but on the contrary was an employee of B. F. Walker in the state of New Mexico, and that by reason thereof the policy of compensation insurance in Texas does not cover the injury.

Under the authority of Southern Underwriters v. Gallagher, Tex.Sup., 136 S.W.2d 590, the test is, What was the status of H. B. Hodges at the time of the injury with regard to being a Texas employee? This record indisputably shows that H. B. Hodges was a Texas employee looking after the master's business at Odessa prior...