Texas Employers' Ins. Ass'n v. Derrick

• Decision Date: 17 November 1947
• Docket Number: No. 5802.,5802.
• Citation: 207 S.W.2d 199
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DERRICK.
• Court: Texas Court of Appeals

207 S.W.2d 199

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

No. 5802.

Court of Civil Appeals of Texas. Amarillo.

November 17, 1947.

Rehearing Denied December 22, 1947.

Appeal from District Court, Lubbock County; Daniel A. Blair, Judge.

Action by C. C. Derrick under the Workmen's Compensation Act to set aside an award of the Industrial Accident Board in favor of the Texas Employers' Insurance Association. From a judgment granting relief, defendant appeals.

Affirmed.

Underwood, Wilson, Sutton, Heare & Boyce, of Amarillo, for appellant.

Smith, Cunningham & Boling, Lubbock, Texas, for appellee.

STOKES, Justice.

This action was instituted by the appellee, C. C. Derrick, against the appellant, Texas Employers' Insurance Association, in the nature of an appeal from an order entered by the Industrial Accident Board denying him compensation under the workman's compensation law. The case was submitted to a jury and upon the verdict returned by it, finding that appellee was totally and permanently incapacitated as the result of personal injuries received by him in the course of his employment, judgment was entered by the court in favor of appellee and against appellant for compensation at the rate of $20 per week for 401 weeks under the provisions of Article 8306 et seq. of Vernon's Annotated Civil Statutes. The record shows that appellee had received three separate injuries, one on December 6, 1943, another on November 28, 1944, another on February 5, 1946, and he had instituted three suits against appellant as the compensation insurance carrier of his employer, the Standard Milling Company, located at Lubbock, all of which were consolidated and tried as one suit. In his petition upon which the case was tried, appellee attributed his incapacity primarily to his alleged injury of February 5, 1946, and sought recovery for his prior alleged injuries only in the event his claim for the injury of February 5, 1946, should be rejected. The jury attributed all of his incapacity to the alleged injury of February 5, 1946.

Appellant admitted it had issued to the Standard Milling Company a policy of compensation insurance and that the policy was in full force and effect on the dates of the alleged injuries. It further admitted that, if appellee was an employee of Standard Milling Company and, if his employment was in an occupation which is compensable under the compensation statutes, appellee was entitled to its benefits; but it denied that appellee's employment on the dates he received the respective alleged injuries was in an occupation which is compensable under the compensation statutes. It alleged that his duty under his employment by Standard Milling Company was that of feeding cattle upon a section of land primarily devoted to farming and he was, therefore, a farm laborer and excluded from the provisions of the compensation law by the provisions of Section 2, Article 8306, R.C.S. The jury found against appellant on that issue.

Appellant duly excepted to the judgment, perfected an appeal therefrom and presents the case here upon a number of assignments of error in which it contends; first, that the evidence was insufficient to support the jury's verdict to the effect that appellee was not a farm employee and the court erred in not holding as a matter of law that he was such; secondly, it complains of the refusal of the court to submit certain special issues requested by it; thirdly, that the court erred in the manner in which appellee's average weekly wage was submitted to the jury; and fourthly, that the court erred in denying its motion to declare a mistrial, rendering judgment upon an incomplete verdict, and in overruling its motion for a new trial based upon certain argument to the jury by appellee's counsel.

In regard to the first contention, the record shows that appellee's employer, Standard Milling Company, owned and operated a milling plant about a mile northwest of the City of Lubbock and, among other things, it manufactured feed for livestock. The record indicates the milling plant was owned by Walker F. Stanton and other members of the Stanton family. The Stantons also owned a farm of several hundred acres located about a mile north of the milling plant, and upon this farm a small tract of about 25 acres was converted into feeding pens where cattle belonging to customers of the mill were fed and fattened for the market. The feed was transported from the mill to the feeding pens by trucks operated by other employees and appellee was employed in 1942 by the Standard Milling Company to feed cattle at the feeding pens. Among other crops, the Stantons raised alfalfa on the farm and upon at least one occasion they had some cattle located there. The testimony indicates that some of the alfalfa produced on the farm was fed to cattle of other customers and also that, at one time, some of the Stanton cattle were fed and fattened in the feeding pens. It was further shown by the testimony that on some occasions, when appellee's services were not required at the feeding pens, he worked on the Stanton farm, cutting and raking alfalfa, but he testified positively that he was employed to feed the cattle; that feeding cattle at the feeding pens constituted his primary duty under his employment and this was not contradicted in any way. The personal injury for which appellant recovered compensation was received by him in the feeding pens while he was engaged with another employee in lifting sacks of feed from the ground and putting them upon a wagon.

Appellant contends that the raising of cattle is a farm or ranch enterprise, not an industrial one, and that the raising of cattle cannot fairly be said to be complete until they have been fattened for the marker. It argues that a farmer does not cease to be a farmer merely because he acquires livestock bred or raised by others and completes the raising process by feeding and fattening cattle thus acquired in order to prepare them for the market, nor even where he feeds and fattens cattle belonging to others. Under this theory appellant contends the appellee was engaged in farm or ranch work and was therefore excluded from the benefits of the compensation law.

We are not in accord with appellant in this contention. As we have shown, his principal employment, the work he was employed primarily to perform, and did perform, was feeding cattle. Except on one or two occasions, the cattle that were fed at the feeding pens of his employer belonged to other people. Appellee was employed, and his wages were paid, by the Standard Milling Company and, while it is true as contended by appellant, that the process of raising and feeding cattle is an element of ranch and farm operation, yet it does not necessarily follow that every one who feeds and fattens cattle is a farmer or ranchman. While appellee's employer, the Standard Milling Company, was owned by members of the Stanton family, it was a separate enterprise from the farm which also belonged to them, and appellee's duties were confined principally to those which were necessary for the milling company to sell and deliver the products of its plant. It is not claimed that the milling company ever owned any cattle and the mere fact that the feeding pens were located upon a farm belonging to the same persons who owned the milling plant did not convert that institution into a farmer or ranchman. If the feeding pens had been located on the milling premises and connected with the buildings and improvements in which the plant and machinery were being operated, the question of whether or not the milling company was engaged in a farming or ranching enterprise could hardly arise, and the fact that the feeding pens were located approximately a mile from the plant would not change the nature of the enterprise in which it was engaged. Fidelity Union Casualty Co. v. Carey, Tex.Civ.App., 38 S.W.2d 169 (affirmed, Tex.Com.App., 55 S.W.2d 795); Holmes v. Travelers Ins. Co., Tex.Civ.App., 148 S.W.2d 270; Lloyds Guarantee Assur. v. Anderson, Tex.Civ. App., 170 S.W.2d 312.

Moreover, the fact that, on some occasions, when appellee's services were not required at the feeding pens, he worked on the Stanton farm, cutting and raking alfalfa and perhaps doing other chores, did not change the nature of his employment nor convert him into a farm or ranch laborer. As we have said, his principal employment was to feed cattle at the feeding pens of the Standard Milling Company, which undoubtedly was an industrial enterprise. Even if the two enterprises had belonged to, and were being operated by, appellee's employer, the intermittent work he performed on the farm and his work in feeding cattle at the feeding pens would be nothing more than employment in two enterprises under the same ownership and, according to the authorities above cited, he would still be entitled to the compensation insurance if he received an injury while engaged in the enterprise that was covered by the compensation insurance policy. The undisputed evidence shows he was employed to perform those duties which, as we have said, under the circumstances revealed by the record in this case, were unquestionably duties pertaining to an industrial enterprise. His work on the Stanton farm was merely incidental to his main employment. It is probably true that if he had received his injury while working on the farm, cutting and raking alfalfa, the injury would not have been compensable, but such is not the case here and, in our opinion, appellant's first contention is not well taken.

Appellant requested the court to instruct the jury that "* * * one whose primary employment, to which any other work is incident, is, by the land owner or land operator, in the production of food or other products of the earth, or the raising of stock for market, including any final fattening process reasonably incident to the completed growth for market of the stock, is a farm or ranch employee within the meaning of...