Southern Underwriters v. Jones, 3385.

• Decision Date: 24 February 1939
• Docket Number: No. 3385.,3385.
• Parties: SOUTHERN UNDERWRITERS v. JONES.
• Court: Texas Court of Appeals

125 S.W.2d 393

SOUTHERN UNDERWRITERS v. JONES.

No. 3385.

Court of Civil Appeals of Texas. Beaumont.

February 24, 1939.

Rehearing Denied March 1, 1939

Error from District Court, Angelina County; C. E. Brazil, Judge.

Suit by the Southern Underwriters against Dave W. Jones to set aside an award of the Industrial Accident Board, wherein the defendant by cross-action sought to recover compensation for injuries allegedly received in the course of his employment as an employee of B. L. Zeagler. To review a judgment for the defendant, the plaintiff brings error.

Judgment affirmed.

Battaile, Burr & Holliday, of Houston, and J. J. Collins, of Lufkin, for plaintiff in error.

John W. Laird, of Lufkin, for defendant in error.

O'QUINN, Justice.

Plaintiff in error filed this suit in the District Court of Angelina County, Texas, against defendant in error, to set aside an award of the Industrial Accident Board.

Defendant in error answered, and by cross-action sought to recover from plaintiff in error compensation for injuries alleged to have been received by him while in the course of his employment as an employee of B. L. Zeagler, resulting in his total and permanent incapacity.

At the close of the evidence, plaintiff in error moved for an instructed verdict which was refused. The case was then submitted to a jury upon special issues which were answered favorable to defendant in error, and judgment rendered in his favor for compensation at the rate of $9 per week for and during the period from September 30, 1935, up to and until January 20, 1940, together with six per cent interest on all the weekly matured payments. Motion for a new trial was overruled, hence this appeal.

The following statement of the nature and result of the suit is taken from the brief of plaintiff in error, which defendant in error accepts as correct: "The defendant in error sustained certain injuries to his eye and face in Angelina County, Texas, on August 5, 1935. Within six months thereafter he filed with the Industrial Accident Board a claim for compensation for such injury, stating that it was sustained in the course of his employment with B. L. Zeagler. B. L. Zeagler had notice of such injury within thirty days after same occurred. Plaintiff in error, The Southern Underwriters, was the compensation insurer for B. L. Zeagler on the date such injuries were sustained. On January 29, 1936, the Board rendered its final ruling and decision ordering The Southern Underwriters to pay Dave W. Jones $8.65 per week for an indefinite period in the future not exceeding 100 consecutive weeks from August 5, 1935, unless changed by subsequent award of the Board. On February 15, 1936, The Southern Underwriters filed with the Board notice of its unwillingness to abide said award, and within twenty days thereafter on March 5, 1936, filed this suit to set the award aside."

On oral submission, it was agreed that the only question for decision was whether Dave W. Jones, the defendant in error, was at the time he received his injuries, an employee of B. L. Zeagler. If so the judgment should be affirmed, but if not then it should be reversed and rendered for plaintiff in error. It was also agreed that plaintiff in error had paid compensation to defendant in error for eight weeks following his injury.

It is contended by plaintiff in error that Jones was not employed by Zeagler, but that he was an employee of C. B. Massingill who was an independent contractor furnishing and hauling logs for Zeagler. Zeagler was operating a sawmill at the town of Lufkin. He had no logging or trucking department, but depended upon other men who did own and operate log wagons and trucks to furnish the logs and deliver them to his sawmill.

C. B. Massingill had been working, in this way, for Zeagler a number of years. He testified: "I commenced working for Mr. Zeagler in 1924, and have worked for him most of the time since then." Zeagler furnished Massingill $1,000 with which to buy a tract of timber known as the Wright tract. It was while this timber was being cut that Jones was injured. He and others were cutting logs. Jones was told by Massingill to go to cutting the logs. Massingill was working on the job when Jones was hurt. He put Jones...