Texas Employers' Ins. Ass'n v. Owen

• Decision Date: 19 October 1927
• Docket Number: (No. 816-4849.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 298 S.W. 542
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. OWEN et al.
• Court: Texas Supreme Court

298 S.W. 542

TEXAS EMPLOYERS' INS. ASS'N v. OWEN et al.

(No. 816-4849.)^*

Commission of Appeals of Texas, Section B.

October 19, 1927.

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

Suit by Mrs. D. J. Owen and others, surviving wife and children of D. J. Owen, deceased, against the Texas Employers' Insurance Association to set aside the final decision of the Industrial Accident Board denying them compensation, and to recover as beneficiaries. Judgment for plaintiffs was reversed by the Court of Civil Appeals (291 S. W. 940) and cause remanded, and both parties bring error. Judgment of Court of Civil Appeals reversed, and that of District Court affirmed.

Lawther, Pope, Leachman & Lawther, of Dallas, for plaintiff in error.

John F. Evans, Jr., of Breckenridge, and Levy & Evans, of Fort Worth, for defendants in error.

SPEER, J.

Writs of error have been granted to both parties herein to review the judgment of the Court of Civil Appeals for the Seventh District, wherein it reversed the judgment of the district court and remanded the cause for another trial. The cause was one instituted by defendant in error, Mrs. Owen, as surviving wife, in her own behalf and on behalf of the children of D. J. Owen, deceased, to set aside the final decision of the Industrial Accident Board denying them compensation and to recover as beneficiaries against the Texas Employers' Insurance Association for the death of D. J. Owen, while engaged as an employee of the McKnight Transfer, Livery & Sales Company, a subscriber and policy holder in the association. The cause was submitted upon special issues in the trial court upon the answers to which judgment was rendered for the plaintiffs. Upon appeal this judgment was reversed for the refusal of the trial court to submit certain requested special issues. 291 S. W. 940.

We agree with the Court of Civil Appeals in its disposition of the association's assignments, complaining that the trial court should have given its summary instruction, and that that court erred in submitting the issue whether or not the deceased was an employee of the McKnight Transfer, Livery & Sales Company at the time of the accident in question. We approve what was said by Associate Justice Jackson upon these questions. The facts of this case certainly do not bring the deceased within the accepted definition of an "independent contractor." This definition is admirably stated in Shannon v. Western Indemnity Co. (Tex. Com. App.) 257 S. W. 522:

"A contractor is any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details. The true test of a contractor would seem to be that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished."

Practically the only indicium of employer and independent contractor is that the deceased owned and furnished the truck for hauling the gravel that he was engaged to deliver. But this circumstance is no more controlling than if he had insisted upon furnishing his own shovel for loading the gravel when he was otherwise employed as a common laborer by the day. There is lacking here the indispensable feature of an "undertaking to do a specific piece of work." There was not contemplated any completed job. It was a mere service at the will of the parties. There are many features shown by the evidence and stated by the Court of Civil Appeals, wherein the McKnight Company had and exercised control over the deceased in the prosecution of his work. This is the test. As early as Cunningham v. International Railroad Co., 51 Tex. 503, 32 Am. Rep. 632, the Supreme Court, quoting from Sherman and Redfield on Negligence, said:

"He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details."

This "control" refers to the services to be performed under the contract; that is, it pertains to the precise thing to be done. It, of course, does not relate to those things excluded from the service through the operation of the contract by reservations, limitations, or the like. It relates only to the service within the contract. There is no reason why one who undertakes to serve another may not stipulate for conditions in that service such as the furnishings of tools, the limitation of hours, and the like, thus in a measure controlling the details of the service, without in any wise becoming an independent contractor. This, for the simple reason he has not undertaken a service in which the employer is interested only in the result of his work and not as to the means by which it is accomplished, which feature enters into all the definitions submitted by the courts.

There being evidence, then, tending to show that the deceased was an employee of the McKnight Company rather than an independent contractor, and the contract being oral, there was no error in submitting that issue to the jury. Likewise, since the court could not say as a matter of law that the deceased was...