Texas Employers' Ins. Ass'n v. Owen
| Decision Date | 02 February 1927 |
| Docket Number | (No. 2754.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 291 S.W. 940 |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. OWEN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
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. From the judgment rendered, defendant appeals. Reversed and remanded.
Lawther, Pope, Leachman & Lawther, of Dallas, for appellant.
John F. Evans, of Breckenridge, and Levy & Evans, of Fort Worth, for appellees.
This suit was instituted in the district court of Potter county, Tex., by appellees, who are the surviving wife and children of D. J. Owen, deceased, to set aside the final decision of the Industrial Accident Board of this state, denying them compensation, and to recover as beneficiaries against the Texas Employers' Insurance Association, the appellant, for the death of D. J. Owen while engaged as an employee of the McKnight Transfer, Livery & Sales Company, which carried compensation for its employees and their beneficiaries with the appellant.
Appellees alleged that the McKnight Transfer, Livery & Sales Company, hereinafter called the McKnight Company, is a Texas corporation, and that on or about July 21, 1925, while in the employ of said McKnight Company, the deceased, in the course of his employment, by accident received injuries which resulted in his death; that at the time of the accident the McKnight Company was carrying a policy of insurance with the appellant, by the terms of which it was obligated to pay to the beneficiaries of deceased compensation, under the Workmen's Compensation Act of this state (Vernon's Ann. Civ. St. 1925, arts. 8306-8309).
The sufficiency of the pleadings is not questioned, and, without stating more in detail, we deem it sufficient to say that all allegations necessary to a recovery by appellees against appellant were made.
Appellant answered by general demurrer and general denial.
At the conclusion of the testimony the case was submitted on special issues, in response to which the jury found, in effect, that D. J. Owen was not an independent contractor; that on July 21, 1925, he was an employee of the McKnight Transfer, Livery & Sales Company, and sustained injuries in the course of his employment which resulted in his death; that the average wages of D. J. Owen was $5 per day; and that the failure to pay compensation to appellees in a lump sum would result in manifest hardship and injustice to them.
On this verdict the court rendered judgment that the adult children recover nothing, and that Mrs. D. J. Owen, the surviving wife of D. J. Owen, deceased, have judgment against appellant for the sum of $2,682.72, with 6 per cent. annual interest thereon from the date thereof, and judgment as next friend against appellant in the sum of $670.68, with 6 per cent. interest from the date thereof for each of the three minor children, from which action and judgment of the court this appeal is prosecuted.
The appellant, based on proper assignments, presents as error the action of the trial court in refusing to peremptorily instruct the jury to find a verdict in its behalf, because the uncontroverted evidence shows that at the time of the accident and injury the deceased was not an employee of the McKnight Company, but was an independent contractor, and that the injuries sustained by the deceased did not originate and were not received by him in the course of his employment, nor while engaged in or about the furtherance of the affairs or business of said company.
The testimony discloses that the McKnight Company is a corporation, and, among other things, is engaged in the transportation of material and commodities for which it owns horses, mules, and automobile trucks; that it had theretofore been engaged in hauling gravel used for improving different streets in the city of Amarillo; that in July, 1925, it had contracts for graveling certain streets in Glenwood, a suburban addition southeast of Amarillo, about 8 miles from the gravel pit, and in San Jacinto Heights, a suburban addition west of Amarillo, about 2½ miles from the pit; that said contracts obligated the company to furnish, transport, and deliver to and on the streets the gravel with which the streets were improved; that the improvements were to be made expeditiously; that to transport the gravel to improve the streets in these respective additions about 28 trucks belonging to a number of different individuals were engaged by it; that the gravel was obtained from a pit about 4 or 5 miles northwest of Amarillo, at which the McKnight Company kept a foreman and some 12 or 15 laborers; that work began at the pit at 7 o'clock a. m. and closed at 5 o'clock p. m.; that the owners of the trucks, or their drivers, were instructed to be at the pit with their trucks at 7 o'clock a. m., and that work would cease at 5 o'clock p. m.; that the drivers of the trucks on reaching the pit for a load of gravel were, in the order of their arrival, instructed to drive to a certain place in the pit by the foreman of the McKnight Company, who instructed its laborers to load the truck with the kind of gravel, either pit run or screened, which the company desired hauled; that after the truck was thus loaded the foreman gave the driver a ticket and instructed him to carry the load either to San Jacinto Heights or to Glenwood, according to the company's needs; that on arrival at such destination with his load, the company had a foreman there who measured the load on the truck, punched the ticket with the amount thereof, and directed each driver where his load should be dumped; that the company had measured the distance from the gravel pit to the streets it was improving in the respective additions, and agreed with each trucker to pay so much per cubic yard of gravel per mile that was hauled by his truck; that the deceased was not employed for any certain length of time, nor to haul any certain number of cubic yards, but was paid each week on the basis of the number of cubic yards of gravel per mile he had transported; that the company had the right to and did discharge any trucker whose services were not satisfactory; that the McKnight Company in employing truckers, and in its contract with deceased, inquired the kind of truck to be used because it was interested in getting the gravel hauled, but did not require the trucker to follow any specified route to the destination, nor to haul any specified number of cubic yards per day, nor to drive at any particular rate of speed, nor in any particular gear, but paid for the number of cubic yards per mile of gravel delivered, determining the mileage by the measurements theretofore made by the McKnight Company; that the deceased began hauling gravel about the latter part of June, 1925, with two trucks, one driven by himself and the other by one of his sons; that the truck driven by deceased was in good operating condition for hauling lighter material or over other roads, but owing to its gear ratio its lack of power was causing the deceased some trouble in its operation, and on a number of occasions would not pull the load out of the pit, and the foreman of the McKnight Company took a team and pulled the truck out of the pit, time after time; that he had advised the foreman that he was going to fix the truck; that on the morning of July 21, the day on which deceased received his injuries, he and the son not engaged in driving his other truck went to the pit, the truck was loaded, and the gravel carried in the usual way and unloaded; that the deceased and his son decided to change the gear ratio on the truck so as to give it more power, for which purpose they stopped at a Mr. Barker's, who lived by the side of the route traveled by the truckers, to make the change; that deceased said he was in a hurry to make the change and...
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