Texas General Indem. Co. v. Bottom

• Decision Date: 20 February 1963
• Docket Number: No. A-9180,A-9180
• Parties: TEXAS GENERAL INDEMNITY COMPANY, Petitioner, v. Mrs. Ruth BOTTOM, Respondent.
• Court: Texas Supreme Court

Page 350

365 S.W.2d 350

TEXAS GENERAL INDEMNITY COMPANY, Petitioner, v. Mrs. Ruth BOTTOM, Respondent.

No. A-9180.

Supreme Court of Texas.

Feb. 20, 1963

Rehearing Denied March 20, 1963.

Crawford Martin, Hillsboro, Touchstone, Bernays & Johnston, Dallas, for petitioner.

Jack Sims, Hillsboro, Stark, Carroll & Davey, Gainsville, for respondent.

WALKER, Justice.

This suit for death benefits under the Workmen's Compensation Act was brought by the widow of Wilbur F. Bottom, deceased, an employee of Safety Convoy Company who lost his life in a highway accident. In response to the one special issue submitted, the jury found that Bottom's fatal injuries were sustained in the course of his employment. Judgment on the verdict in plaintiff's favor was affirmed by the Court of Civil Appeals with one justice dissenting on rehearing. 358 S.W.2d 765. In our opinion there is no evidence to support the finding of the jury.

There is little controversy as to the evidentiary facts which were established at the trial. Deceased was employed as a truck driver by Safety Convoy Company, whose place of business was in Dallas. He and his wife resided in Hillsboro. The employer was engaged in the business of delivering new automobiles from the Ford assembly plant in Dallas to various points in Texas. Its drivers operated on what was known as a 'show-up-system.' Postings of trips were made at intervals during the day, and the loads were chosen by the drivers present in the order of their seniority. There were occasions when the junior drivers had no loads and thus no work. A driver was free to work or not work as he saw fit even if there were loads to be taken. He could sign out at any time on the 'unavailable list' and be away for as long as three days for any reason he considered proper. The drivers were on call, however, and could be called at any time. The company would 'get on' a driver who signed the list to be available at a certain time and then failed to show up. Drivers were paid on a loaded mile basis with certain allowances for split loads, etc. They received no additional compensation for attending postings, waiting on the lot, repair time or return trips.

A number of drivers owned trucks which were leased to the company. There is no evidence indicating that this was required as a condition to their employment. Some drivers operated trucks owned by the company and received the same pay as an owner-operator did for his services as a driver. A driver who owned his vehicle executed a written agreement leasing the same to the company. The contract provided, among other things, that only freight solicited and controlled by the company would be transported in the leased vehicle, that the company would have full possession and control of the vehicle during the term of the lease, that the vehicle would be operated only by employees of the company, and that its operation would be under the direction and complete supervision of the company. Under the terms of the contract, the lessor was required to maintain the vehicle in first-class operating condition and to pay all operating costs, including gasoline, oil, tires and repairs. As compensation for the use of his vehicle, he received 65% of the gross freight billings which it hauled less driver's pay. The deduction for driver's pay was the same whether the vehicle was operated by the owner or by another employee.

If a lessor did not wish to work and his vehicle was needed, the company had the right to and would put another driver on the truck. The company required that leased trucks be properly maintained and would have cancelled the lease if the owner failed to perform his obligations in this respect. Facilities for maintaining and servicing the trucks were provided by the company, which charged the owner for services performed on a leased vehicle, but the owner was free to have the work done anywhere he desired. The owners preferred to and usually did have their trucks repaired elsewhere by mechanics whom they selected. When the owners of leased trucks had uncoupled their tractor units from the company trailers and were off duty, it was customary for many of them to drive their trucks to and from home. An owner was at liberty to use his vehicle for personal errands as he saw fit while he was off duty.

Bottom was employed by the company as a driver for a number of years. Several months before his death he purchased a new Ford tractor unit and executed a written contract leasing the same to his employer. The lease agreement is on the company's usual form and contains the provisions mentioned above. The stipulated compensation for the use of the truck was paid to Bottom semi-monthly, and he received his driver's pay on two other dates each month.

He was killed when his tractor unit overturned while he was driving from Hillsboro to Dallas on Sunday morning, October 11, 1959. The last work he did for the company was to take a load to Forney, near Dallas, the previous morning. He apparently returned to Dallas and signed the 'available list' at 3:45 p. m. Saturday afternoon, but later scratched his name off. He also signed the 'unavailable list' and stated that he would be available at 8:00 p. m. on October 10th. At 5:20 p. m. he again signed the 'unavailable list' and on this occasion indicated that he was going home and would be available for work at 4:00 p. m. on October 11th.

Bottom drove to Hillsboro Saturday night in his bobtailed truck, i. e. without the company trailer attached. Sunday morning he declined to go to church with his wife, saying that the company needed him badly and that he would try to get back to Dallas for a 1:00 p. m. posting. While in Hillsboro he had the truck greased, its brakes adjusted, and a spark plug cleaned. The total charge for this service was $5.80. He left home for Dallas at about 10:30 a. m., and the accident occurred some thirty minutes later at a point several miles north of Hillsboro.

During the period of his employment by Safety Convoy Company before he acquired his own truck, Bottom never drove an empty company truck from Dallas to Hillsboro. He did try to get loads going through Hillsboro, and occasionally stopped at home when passing through with a load or after making a delivery. On other occasions he went home by bus or rode with another driver, or his wife went to Dallas for him. After purchasing his truck, Bottom used this vehicle whenever he wanted to...