Texas Emp. Ins. Ass'n v. Harper

• Decision Date: 23 May 1952
• Docket Number: No. 14521,14521
• Citation: 249 S.W.2d 677
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. HARPER.
• Court: Texas Court of Appeals

Page 677

249 S.W.2d 677

TEXAS EMPLOYERS' INS. ASS'N v. HARPER.

No. 14521.

Court of Civil Appeals of Texas, Dallas.

May 23, 1952.

Rehearing Denied June 20, 1952.

Burford, Ryburn, Hincks & Ford and Howard Jensen, Dallas, for appellant.

B. B. Hemphill and W. R. Hemphill, Dallas, for appellee.

CRAMER, Justice.

This is a duly perfected appeal from a judgment of a District Court, on appeal from the Industrial Accident Board, awarding appellee death benefits as a beneficiary of her deceased husband, Jesse Harper, under our Workmen's Compensation Act. Appellant, herein called 'Association,' defended in the trial court on the ground that the deceased was not an employee of its subscriber, Eagle Pitcher Company, herein called 'EPC,' but was an employee of B. H. Harbison, an independent contractor.

It is undisputed that EPC was a subscriber, with the Association as its insurer under the Act, and operated a large plant in the industrial district of the Dallas area; that it made a contract with Harbison (financially a poor man) to paint certain high stacks at its plant; that Harbison was a steeplejack painter and contractor; that he was not a regular employee of EPC; his contract to paint the stacks in question was oral, and was for a consideration of $150 each, for the three sets of three double stacks. Harbison employed Harper, deceased, and two other men to do the high work on the stacks under his direction from the ground; EPC furnished the paint used, Harbison owned and furnished all steeplejack equipment and rigging used by Harper and the other painters on the job in the painting of the stacks. Harbison had theretofore made similar contracts with EPC for the same kind of work; Harbison was the only person who put the three workmen on the job, or who set their pay and delivered their wages to them. Each of Harbison's employees was required by EPC, before they were permitted to work on its premises, to submit to a physical examination. The medical report by EPC's doctor was on a printed form which had thereon the word 'Employer,' and in the space following such word, the doctor making the examination wrote in the name, 'Eagle Pitcher Co.' The doctor's report on the three employees of Harbison was that they were physically fit. However, the report on Harbison was that he was in such physical condition that he should not go above ground; and EPC made it a condition of the contract that he should not go above ground. Harbison, on the job, directed the work from the ground.

The jury found, material here, in answer to special issues, that: (1) Harper was an employee of EPC on July 19, 1949; (2) that the fall of Harper occurred in the course of his employment with EPC; (3) that the fall naturally resulted in his death; (7) that Harbison was not an independent contracto; (8) that Harper was not an employee of B. H. Harbison on the occasion in question. Judgment for Mrs. Harper was entered on such verdict.

Appellant's first two points complain of the trial court's overruling, (1) its motion for instructed verdict and motion for judgment n. o. v.; (2) and its motion for new trial; asserting that the evidence was insufficient to support either the verdict or the judgment.

Appellee points out the following evidence which she asserts raised the issues submitted to the jury, to wit: (a) EPC required Harbison and each person employed by him to take a physical examination by its doctor before going on the job; (b) EPC's workmen's compensation policy for the year contained an estimated advance premium based on stack-painting; (c) Harbison was a poor man; (d) that after EPC's doctor made an unfavorable report on Harbison, EPC made it a condition of the contract that Harbison not go above the ground on the job; (e) evidence that EPC furnished the paint on the job; (f) that the form on which the doctor reported the results of his examination of Harbison and the three men placed on the job by him, which included Harper, had printed thereon the word, 'Employer,' and the words 'Eagle Pitcher' written in thereafter, which report was accepted and agreed on without objection by EPC before the men went on the job; and (g) that the evidence as a whole showed the contract was let to Harbison with the purpose and intention by EPC of avoiding the liability imposed by the Workmen's Compensation Act, all as is condemned by Art. 8307, sec. 6, R.C.S. 1925.

In view of appellee's express reliance on the above, we will consider each of such assertions separately and collectively, and thereafter will consider the record as a whole, to determine whether the evidence raised the issues of fact found by the jury and material to appellee's recovery here.

The record shows that EPC, in its businesses, uses a large quantity of lead in certain of its processes and that there are individuals who have a reaction therefrom at times, when around lead; that on occasions any unusual ailment will, at times, be laid to lead. This, together with the fact that lead is not in itself poison, but can, on occasions, react on the nervous system and give trouble, makes it necessary for EPC to require physical examinations of all persons entering that part of its plant where lead is being used. The evidence shows that Harbison himself at one time claimed an arthritic condition was caused by lead, and the doctors thereafter established his ailment only as arthritis,-and not the result of being around lead.

Under such record, the requirement of a physical examination would not make a jury question as to whether Harbison, and/or Harper, deceased, were employees of EPC. And the doctor's written words, 'Eagle Pitcher,' after the printed word, 'Employer,' in his report, being fully explained, did not make a question of fact on the issues of independent contractor, or employee, relationship. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Latta v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 243 S.W.2d 949, ref. n.r.e. The fact that the workmen's compensation policy contained, in the estimated amount on which the year's advance deposit premium was based, a sum which EPC anticipated would be paid for painting the stacks in question, could not by itself, or collectively with other facts, affect the result in this case, and was not admissible on the main issue of whether the contract made by EPC created the relationship of employer-independent contractor, or of employer-employee. The payment, or nonpayment, of premiums is not material on such issue. It is the legal effect of the oral agreement between EPC and Harbison, which controls. Service Mutual Ins. Co. v. Blain, 140 Tex. 541, 168 S.W.2d 854; Federal Underwriters Exchange v. Morton, Tex.Civ.App., 167 S.W.2d 267, ref. w.o.m. The evidence that Harbison was a poor man of itself was not controlling. However, such evidence was admissible and could, under certain circumstances, be taken with other sufficient evidence in determining whether there was a sufficient showing to make a jury issue.

Appellee cites Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399, 401. Such case, while it holds 'The alleged contractor, John...