Southern Underwriters v. Samanie

• Decision Date: 09 July 1941
• Docket Number: No. 1867-7660.,1867-7660.
• Citation: 155 S.W.2d 359
• Parties: SOUTHERN UNDERWRITERS v. SAMANIE.
• Court: Texas Supreme Court

155 S.W.2d 359

SOUTHERN UNDERWRITERS v. SAMANIE.

No. 1867-7660.

Commission of Appeals of Texas, Section B.

July 9, 1941.

Rehearing Denied November 5, 1941.

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

Action by I. O. Samanie against the Southern Underwriters, insurer, to set aside an award by the Industrial Accident Board under the Workmen's Compensation Act. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 130 S.W.2d 1090, and the defendant brings error.

Judgments of the Court of Civil Appeals and district court reversed, and cause remanded to the district court.

Benbow, Saunders & Holliday and Henry D. Akin, all of Dallas, Greenwood, Moody & Robertson and Thos. B. Greenwood, all of Austin, and Levert J. Able of Houston, for plaintiff in error.

Collins, Pate, Hatchell & Garrison and Pitser H. Garrison, all of Lufkin, for defendant in error.

SMEDLEY, Commissioner.

This is a workmen's compensation case, in which plaintiff in error, the Southern Underwriters, is the insurer and defendant in error, Samanie, the claimant. The district court, in trial before a jury on special issues, rendered judgment in favor of defendant in error against plaintiff in error for $6,655.39, being compensation at the rate of $20 a week for 401 weeks, reduced to a lump sum. The trial court's judgment was affirmed by the Court of Civil Appeals. 130 S.W.2d 1090.

It was held by the Court of Civil Appeals that twenty-seven of the thirty-one assignments of error contained in the appellant's brief were too general, failed to point out any specific error and should not be considered. Four of the questions submitted under assignments of error that the Court of Civil Appeals declined to consider have been brought forward in the application for writ of error.

The first question, which is whether the uncontroverted evidence shows as a matter of law that defendant in error was at the time of his injury an independent contractor and not an employee of the insured, was presented in the Court of Civil Appeals by two assignments, one being that the trial court erred in overruling defendant's motion for an instructed verdict and the other that the trial court erred in refusing to give in charge to the jury defendant's requested instruction No. 1, which was a request for peremptory instruction. Under these assignments the appellant presented several propositions, which were in substance that the uncontroverted evidence showed that at the time of the accident the insured had no right of control over the details of the appellee's work and exercised no control, but that appellee had a hauling contract with the insured to whom he was responsible only for the results of his work and not for the method and means of accomplishing the work, and that consequently as a matter of law appellee was not an employee of the insured but was an independent contractor. The propositions are followed by an elaborate statement quoting the testimony as to the contract of employment, the character of appellee's work, the manner in which it was done and the control which the insured could and did exercise over him, with references to the statement of facts.

By appropriate assignments of error in the application for the writ plaintiff in error brings forward its contentions that the trial court erred in submitting conditionally, rather than unconditionally, its defense that defendant in error's incapacity was temporary and its defense that defendant in error's incapacity was partial. Several assignments of error in appellee's brief in the Court of Civil Appeals presented these two contentions. Typical of them is the twenty-third assignment of error, which is as follows:

"The court erred in overruling defendant's objections and exceptions to the instruction immediately preceding Special Issue No. 12 wherein the jury is instructed that if they have answered Special Issue No. 7 `Yes', then they should answer Special Issue No. 12, set forth in paragraph 29 of defendant's objections and exceptions to the court's charge in that portion of such paragraph 29 which immediately precedes sub-division (a) of such paragraph 29, taken together with sub-division (c) of such paragraph 29, as shown by the record herein."

The brief contains propositions germane to the assignment above quoted and other similar assignments and making proper reference to them, pointing out with particularity why the rulings referred to in the assignments are claimed to be erroneous and clearly presenting the contention that the court erred in submitting the issues as to temporary incapacity and partial incapacity conditioned on the answer to the issue as to total permanent incapacity. The propositions are followed by statement setting out the issues submitted, the written objections made to the submission of the particular issues conditionally and testimony raising the issues of temporary and partial incapacity, with references to pages of the transcript and the statement of facts.

The assignments of error presented in the Court of Civil Appeals and above referred to are in our opinion sufficient and should have been considered. Each of said assignments distinctly and clearly directs the attention of the court to the error of which complaint is made. Each is supported by a proposition which plainly states the reasons by which the allegation of error is sought to be sustained. The propositions are followed by adequate statements, with references to the record. Article 1757, Revised Civil Statutes of 1925, as amended by Chapter 45, Acts Regular Session, 42nd Legislature, Vernon's Ann.Civ. St. art. 1757; Article 1844, Revised Civil Statutes of 1925, as amended by Chapter 75, Acts Regular Session, 42nd Legislature, Vernon's Ann.Civ.St. art. 1844; Clarendon Land, etc., Co. v. McClelland Bros., 86 Tex. 179, 189-192, 23 S.W. 576, 1100, 22 L.R.A. 105; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270; Gavin v. Webb, 128 Tex. 625, 101 S.W.2d 217; The Praetorians v. Redmond, 132 Tex. 432, 123 S.W.2d 644.

Defendant in error Samanie at the time of his injury was hauling logs for J. S. Hunt Lumber Co., Inc. The court instructed the jury that by the term "employee" as used in the charge was meant "every person in the service of another under any contract of hire, express or implied, oral or written, whereby the employer has the right to control and direct the manner, means and method in performing the work, except one who is not in the usual course of trade, business, profession or occupation of his employer". The jury, by affirmative answers to special issues, found that Samanie "was an employee of J. S. Hunt Lumber Company, Inc.", when the injury was suffered and that "J. S. Hunt Lumber Company, Inc. retained the right to control and direct the manner, means and method used by the plaintiff I. O. Samanie in performing the material details of the work in which he was engaged when he sustained said injury."

The first assignment in the application for writ of error presents the contention that according to the undisputed evidence defendant in error was an independent contractor and not an employee of the lumber company. The evidence as to the contract of employment, which was oral, throws little light on the question whether the lumber company in its employment of Samanie retained the right of control over him. It becomes necessary in the solution of the question first presented to consider not only the evidence as to the terms of the contract when made, but also the evidence with reference to the control that was actually exercised, for it is relevant and admissible as tending to prove what the contract really contemplated. Lone Star Gas Co. v. Kelly, Tex.Com.App., 46 S.W.2d 656; Note, 20 A.L.R. pp. 684, 725; 27 Am.Jur., p. 488, § 6.

J. S. Hunt Lumber Company, Inc., owned and operated a sawmill in the town of Willis which was supplied in part at least by logs cut in the woods about 40 miles distant from Willis and brought to the mill in trucks. Some of the logs were hauled to the mill in trucks owned by the lumber company and operated by its employees and others in trucks driven by their owners, who were employed to furnish, maintain and drive their own trucks. John Muller, as assistant manager of the lumber company, controlled and operated the mill and the woods, had charge of getting the logs from the woods to the mill, and employed those who drove the trucks. Defendant in error Samanie began working for J. S. Hunt Lumber Company, Inc., in the first part of February, 1938. He was injured March 14, 1938. Before his employment by the Hunt Company, Samanie had hauled logs for others in the same vicinity, using his truck and receiving as payment an agreed sum per 1,000 feet. His testimony as to the terms of his employment by Muller for the Hunt Company is in substance: He went to see Muller and asked him to give him a job and Muller said "all right" and told him that the timber was on the Golite tract, about 40 miles from Willis, and that he would pay him $6 per 1,000 feet to haul the timber out of the woods into Willis. It was agreed that Samanie should furnish his own truck and trailer equipment, buy all gasoline and oil, and keep the truck repaired, and that Muller should have the cutting and loading done, Samanie not being required to assist in loading the truck. Samanie testified that when he first started to go to work Muller told him to report in the woods as early as possible and to try to get three loads a day, to try to get in before night, but if not to come on in with the load. Muller's testimony as to the terms of the employment is that he employed Samanie to haul logs from the Golite tract to the mill, agreeing to pay him $6 per 1,000 feet to deliver the logs and put them on the skidway; that Samanie could go to work at any time of the day that he wanted to and could quit whenever he pleased; that when he employed Samanie he did not tell him that he was...