Texas Indem. Ins. Co. v. Halliburton

• Decision Date: 07 December 1950
• Docket Number: No. 6509,6509
• Citation: 235 S.W.2d 499
• Parties: TEXAS INDEMNITY INS. CO. v. HALLIBURTON et al.
• Court: Texas Court of Appeals

Page 499

235 S.W.2d 499

TEXAS INDEMNITY INS. CO. v. HALLIBURTON et al.

No. 6509.

Court of Civil Appeals of Texas, Texarkana.

Dec. 7, 1950.

Rehearing Denied Jan. 4, 1951.

Fountain, Cox & Gaines, Joyce Cox, and Robert Hobbs, all of Houston, Edwin M. Fulton, Gilmer, W. C. Hancock, Pittsburg, for appellant.

Davis & McNeill, W. I. Davis, and Dave McNeill, Jr., all of Center, Florence & Florence, C. E. Florence, all of Gilmer, D. S. Meredith, Jr., Longview, for appellee.

LINCOLN Justice.

This is a second appeal of a workmen's compensation case filed by Texas Indemnity Insurance Company after an award by the Industrial Accident Board in favor of Mrs. Delia Halliburton, the surviving wife, and the two daughters, as statutory beneficiaries of B. B. (Bonnie) Halliburton, who was killed March 23, 1944, while unloading ties onto a railroad car in a tie yard at Gilmer, Texas. All issues arising out of the Compensation Law were settled by trial stipulations with the exception of whether B. B. Halliburton at the time of his injury and death, was an independent contractor or an employee of Kirby Lumber Corporation within the meaning of the Workmen's Compensation Act. Vernon's Ann.Civ.St. Art. 8306 et seq.

On the basis of the stipulated facts, and on jury findings that Halliburton when injured was an employee of the assured, and was not an independent contractor, judgment was rendered in favor of Mrs. Halliburton and her daughters for compensation for the full time and rate provided by said Act.

Appellant presents substantially the same points of error as in the former appeal, namely, that as a matter of law B. B. Halliburton, at the time of his injury and death, was an independent contractor and not an employee of Kirby Lumber Corporation, that there was no evidence to support the jury findings, that the evidence was insufficient to support such findings, and that the verdict was against the overwhelming preponderance of the evidence.

We do not deem it necessary to make an extended statement of the facts upon which he jury verdict might rest. In the former appeal a full statement of the evidence was set out in this court's opinion. Texas Indemnity Insurance Co. v. Halliburton, 209 S.W.2d 775. The record here discloses that all the facts on the former trial were present on the last, and there are additional facts which go to support the jury's verdict. On the former appeal this court held there was no evidence to support the verdict and judgment. This holding was reversed by the Supreme Court. Halliburton v. Texas Indemnity Insurance Co., 147 Tex. 133, 213 S.W.2d 677, 680. In that decision the Supreme Court, after stating the facts, said that 'there is substantial testimony conflicting with that introduced by respondent (appellant) in support of its contention with respect to the character of control reserved by Kirby Lumber Corporation under the terms of the contract.'

It is contended on this appeal as on the former that the control exercised by the assured's agents was merely for the purpose of seeing that the result achieved in loading the ties was in accordance with the contract. The terms of the contract are still in dispute. In ruling on this phase of the case, the Supreme Court said: 'In view of the dispute over the terms of the contract, however, and the fact that there is evidence showing acts of control over details not connected or concerned with the carrying out of the rules or specifications, it was merely other evidence to be considered by the jury in deciding the nature of the relationship between respondent (appellant) and the Halliburton.'

As will be seen from the opinion of the Supreme Court, the evidence on the former trial was sufficient to authorize the verdict there rendered. We quote: 'Since the evidence on the question of the relationship between B. B. Halliburton and Kirby Lumber Corporation is conflicting and would warrant either a finding that B. B. Halliburton was an employee or that he was an independent contractor, the Court of Civil Appeals was without authority to substitute its finding upon that question for that of the jury.'

Since the evidence on this trial is equally as strong, if not stronger, than on the former trial, we follow the holding of the Supreme Court that it was sufficient to support the verdict of the jury, and that the trial court did not err in rendering judgment for appellees on the verdict rendered.

Appellant urges that on the former appeal this court held that the evidence was insufficient to support the verdict, that the evidence on this appeal is substantially the same as on the former, and that our holding of insufficiency of evidence is now the law of this case, and for that reason, the judgment should be reversed. However, as may be seen from the decision of the Supreme Court, that Court did not agree that the evidence was insufficient. As appears in the foregoing quotations from that decision, it was held that the evidence was conflicting on the issues involved and was sufficient to warrant a finding that Halliburton was an employee or that he was an independent contractor. Assuming that the evidence is substantially the same, as appellant asserts, yet it is our duty to follow the Supreme Court, even though in doing so we reverse our former decision. Points 1 to 6, inclusive, raising these questions are overruled.

In appellant's motion for new trial it was alleged that while the trial of the case was in progress certain jurors read the following newspaper article which appeared in the Gilmer Mirror, and which resulted in injury to appellant:

'Insurance Trial Continuing in District Court'

'Re-trial in the Texas Indemnity Insurance Co. v. Mrs. Delia Halliburton suit has occupied the district court here this week, with Judge T. C. Chadick on the bench.

'A jury was selected Monday and testimony began Tuesday. The case was tried in Upshur district court in January of 1947 and sent to the Court of Civil Appeals. Texarkana, in February. From there it was sent to the Supreme Court, which, reversed it for re-trial here on a writ of error in judgment.

'Mrs. Halliburton is the widow of Bonnie B. Halliburton, who was killed in gilmer in March, 1944, while loading crossties. The industrial Accident Board of the State of Texas ruled in July, 1944, that the late Mr. Halliburton was an employee of Kirby Lumber Co. of Center at the time of his death and that Mrs. Halliburton was to receive an award of damages to be paid by Texas Indemnity and Insurance Company.

'In August, 1944, Texas Indemnity Insurance Company filed notice that it was unwilling to abide by the ruling of the Industrial Accident Board and would not pay the award to Mrs. Halliburton.

'The case is expected to continue through Friday.'

The objectionable parts of the newspaper article which are urged by appellant are those relating to the action of the Industrial Accident Board and the unwillingness on the part of appellant to abide by such action and to pay the award to Mrs. Halliburton, as set forth in the third and fourth paragraphs of the quoted article. From the evidence introduced on the motion for new trial it is shown that four jurors read the article at different times and during recesses of the court, without concert of action among them. The evidence shows conclusively that neither the article as a whole nor any facts set forth therein were discussed or mentioned in the jury room during deliberation. None of counsel on either side had anything it do with publishing the story or putting it in the hands of jurors. None of them furnished the newspaper or its reporter with the facts therein stated, or knew such article was to be published until they saw it in the newspaper. On the day the newspaper story was first read by any of the jurors, and after it had been so read by at least one or two of them, the court instructed the jury substantially as follows: 'Do not communicate with any person regarding this case or any of the facts in it, neither by radio, newspaper, or any other way. Do not permit anyone to discuss it with you or obtain any other information from any source until you are discharged. Do no consider anything you may hear at any time or place, or that you may see or read, unless you see and read it from this witness stand. Unless you get information from this witness stand, totally disregard it, it has no bearing on this case and you must not consider it.'

The trial and agruments having been concluded the next day, the jury deliberated for about an hour, when, at the request of two of the jurors who had read the newspaper article, the jury returned to the courtroom and asked the court if they might hear again the testimony of R. S. (Smith) Sanders. Accordingly, his tesimony or so much of it as the jurors desired, was read to them without objection. Up to that time neither of the two jurors had been willing to agree on a verdict. The witness Sanders was an agent of Kirby Lumber Corporation who had made the contract of behalf of his company with B. B. Halliburton. His testimony was replete with details of the business of loading ties, and of the nanner in which Halliburton did it. Numerous facts were testified to by him from which the jury might draw the inference that Halliburton was an employee or that he was an independent contractor. After the Sanders testimony was read, the jury returned to their room for further deliberation and in a short time, or 'a few minute' returned their verdict.

The question at issue falls within in the purview of Rule 327, Tex.Rules Civ.Proc., and cases decided thereunder, said Rule reading as follows: 'Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the...