Swift v. Aetna Cas. & Sur. Co.

• Decision Date: 07 January 1970
• Docket Number: No. 320,320
• Citation: 449 S.W.2d 818
• Parties: Leroy SWIFT, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 818

449 S.W.2d 818

Leroy SWIFT, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.

No. 320.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Jan. 7, 1970.

Thomas A. Adams, III, Knight, Prappas, Rowland & Caldwell, W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellant.

Harry L. Tindall, Dixie Smith, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.

TUNKS, Chief Justice.

On March 21, 1966, the appellant, Leroy Swift, and Key Oil Company, herein referred to as Key, executed a written contract pursuant to which Swift became the operator of a filling station owned by Key. On July 8, 1966, Swift accidentally injured his hand while operating the station. By this suit Swift seeks recovery of workmen's compensation benefits from Aetna Casualty & Surety Company, the compensation carrier for Key. The principal controversy in the trial court and here relates to the status of Swift at the time of the injury as being that of an independent contractor or an employee of Key. In the trial court the jury found that Swift was not an independent contractor, that he was an employee and that his accidental injury was a producing cause of total and permanent loss of the use of his hand. The compensation carrier made a motion for judgment non obstante veredicto contending that the evidence showed as a matter of law that Swift was an independent contractor and not an employee of Key. The trial court granted such motion and rendered judgment for the carrier. Swift has appealed.

The appellant's points of error present the contention that the trial court erred in holding that the evidence established as a matter of law, that the appellant was an independent contractor. In ruling on those points this Court is required to 'consider only the evidence and the inferences tending to support the (Jury's) finding and disregard all evidence and inferences to the contrary. * * *' (Parenthesis added). Garza v. Alviar, (Tex.Sup.Ct.), 395 S.W.2d 821, 823.

The appellee, in addition to countering appellant's points of error, has presented cross-points to the effect that the jury's findings that appellant was not an independent contractor but was an employee have insufficient support in the evidence and are against the overwhelming weight of the evidence as a matter of fact. These cross-points are authorized by Rule 324, Texas Rules of Civil Procedure. In passing upon those cross-points, we are required to consider all of the evidence relating to their subject matter. Texaco, Inc. v. Faris, Tex.Civ.App., 413 S.W.2d 147, n.r.e.

The written contract in question consists of three documents. They did not spell out many of the details of the relationships between the parties. The basic agreement, signed by both parties on March 21, 1966, is designated a 'LEASE AGREEMENT.' It described the location of the station, it provided for the payment by lessee of a rental of 1cents per gallon of gasoline sold, it provided that lessor shall pay for the utilities and for major upkeep of the premises, it limited the use of the premises to that of a filling station, it provided that lessee be responsible for liabilities to his employees and visitors and that lessee hold lessor free from such liabilities, it made lessee responsible for upkeep of the premises and equipment and it could be cancelled by either party upon notice.

At the same time that the lease agreement was signed another instrument called 'Amendment to lease agreement' was signed. This agreement provided that lessee be responsible for consigned merchandise and furnish periodic inventories, that lessor pay personal property taxes on the consigned stock and that the agreement could be cancelled by either party without notice.

A third instrument was involved in the transaction. It was not signed by either party but a copy of it accompanied the other two instruments. This third paper was called 'LL PLAN.' The 'LL PLAN' recited that:

'The lessee at each station will own his own oil, cigarettes, cold drinks, TBA, etc., and he will receive the full profit from all sales of this nature and all service work. Gasoline, kerosene, and diesel stocks would be owned by Key Oil Company, and a margin on these items will be allowed as per the following table. Key will not guarantee the lessee a minimum income on this basis. All supplies used at the station will be paid by lessee.'

This language is followed by a column of figures headed 'Lessee Margin Per Gallon.' In this column are set out the amounts per gallon to be paid to Swift for each gallon of gas sold at prices per gallon which prices are set out in corresponding columns. The payments to Swift per gallon sold vary from 5.2cents for each gallon of ethyl gasoline sold at 31.9cents and for each gallon of regular gas sold at 29.9cents to 1.9cents paid for each gallon of white gas sold at 19.9cents per gallon. The instrument then recites, 'Lessee Margin is subject to payment of 1cents per gallon to Lessor to cover rent and utilities.'

In determining whether a particular relationship constitutes an employer-employee relationship, the controlling question is whether the alleged employer has the right to control the alleged employee in the details of the work to be done. Anchor Casualty Co. v. Hartsfield, (Tex.Sup.Ct.), 390 S.W.2d 469; Newspapers, Inc. v. Love, (Tex.Sup.Ct.), 380 S.W.2d 582. If the relationship in question exists by virtue of a contract between the parties which is specific in treatment of the matter of the right of one to control the other, that contract is conclusive as to the nature of the relationship. However, if the parties have made a purported contract which is specific on the subject of the right of control by one of the other, that purported contract is not conclusive on the question of the right of control if there is evidence from which it can be found that it was a subterfuge by the contracting parties or that it has been abandoned by them. Newspapers, Inc. v. Love, supra.

The written contractual arrangement of the parties here was not specific in its treatment of the right of Key to control the appellant in the details of his work in running the filling station. It did not specifically give Key such right of control but neither did it exclude such right. It did not give the appellant full authority as to the details of the running of the filling station owned by Key. The relationship created by the written contract was nebulous, indeed. In purported to be a lease agreement but did not give the 'lessee' a right to any continued possession. It was made terminable at the will of the lessor and without notice by one of the provisions therein. It did not oblige the lessee to pay rent for a definite period of time because it was also terminable at the will of the lessee. Some of the language used indicated that the parties contemplated that Key would deliver gasoline to the station on consignment to the appellant, but it did not follow the usual form of a consignment contract. It did not provide for delivery at a fixed price that the appellant should pay to Key when the consigned gasoline was sold, but set up a varying amount of the sales price which appellant should receive when the consigned product was sold. It merely suggests that consignments were contemplated without setting out any terms or conditions under which Key was obliged to deliver gas or Swift obliged to accept it. It did not say...