Texas State Highway Department v. Edens

• Citation: 174 S.W.2d 54
• Decision Date: 22 July 1943
• Docket Number: No. 2548.,2548.
• Parties: TEXAS STATE HIGHWAY DEPARTMENT v. EDENS.
• Court: Texas Court of Appeals

174 S.W.2d 54

TEXAS STATE HIGHWAY DEPARTMENT v. EDENS.

No. 2548.

Court of Civil Appeals of Texas. Waco.

July 22, 1943.

Rehearing Denied September 23, 1943.

Appeal from Jones County Court; Gilbert Smith, Judge.

Suit by L. R. Edens against the Texas State Highway Department to recover employee's compensation benefits for injuries sustained by plaintiff. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Gerald C. Mann, Atty. Gen., and Geo. W. Barcus and Wm. J. R. King, Asst. Attys. Gen., for appellant.

Smith & Smith, of Anson, for appellee.

HALE, Justice.

This is a suit for compensation benefits under the provisions of Article 6674s of Vernon's Tex.Ann.Civ.Stats. The claimant alleged as a basis for recovery that on June 10, 1942, while operating a mowing machine as an employee of the State Highway Department of Texas, he suffered the loss of his right index finger. The Department answered with a special exception to the "employee" allegation, a general denial and specifically denied the claimant was its employee within the meaning of Subdivision 2, Sec. 2 of said Art. 6674s at the time of his injury, in that he was not in its service under any appointment or expressed contract of hire, his name did not appear on its pay roll, he had not submitted himself to a physical examination by a regularly licensed physician or surgeon, and he had not been certified to be placed on its pay roll. It further alleged that the claimant, at the time of his injury, was an employee of one Vernon Watts who was then in its service under an independent contract.

At the conclusion of all the testimony the Department seasonably requested the court to peremptorily instruct the jury to return their verdict in its favor upon the specific ground, among others, that the claimant had failed to show he was its employee within the meaning of said Art. 6674s. The court overruled the motion and the Department excepted. The case was then submitted to the jury on one special issue inquiring whether claimant was an employee of the Department at the time of his injury. In connection with such issue, the court instructed the jury as follows: "By the term `employee' as used herein, is meant every person in the service of another under any contract of hire, expressed or implied, oral or written, whereby the employer has the right to control and direct the manner, means and method used in performing the work. The relationship between `employer and employee' is not controlled by the determination of who pays the employee for his services, but by the determination of who has the right to control the work that the employee is doing." The Department objected to the court's charge for the reason, among others, that the term "employee" was not defined as in Subdivision 2, Sec. 2, of said Art. 6674s. The jury found the claimant was an employee of the Department as defined in the court's charge. Thereupon the court rendered judgment in favor of claimant for 45 weeks' compensation and the Department has appealed.

Under appropriate points and assignments appellant contends that since there was neither pleading nor evidence tending to show appellee was on or qualified to be on its pay roll, or within the accepted class of "employees" as defined in the Act of the Legislature authorizing the payment of compensation benefits to injured employees of the Department, the trial court erred in refusing its motion for an instructed verdict. Appellee objects to a consideration of any of the points or assignments relied upon by appellant because the original motion for new trial was filed 2 days before, and the amended motion for new trial was filed 12 days after, the judgment appealed from was actually entered. While it is contemplated under the rules of procedure that a motion for new trial shall be made within two days after the rendition of judgment, it has been repeatedly held that the trial court may, in the exercise of its discretion, entertain a motion filed after the expiration of two days. Because the court did entertain and act upon appellant's amended motion for new trial, we feel constrained to consider the assignments therein contained. Texas Employers' Ins. Ass'n v. Moreno, Tex.Civ.App., 260 S.W. 283, point 1, error refused; Commercial Standard Ins. Co. v. Lowrie, Tex. Civ.App., 49 S.W.2d 933, point 3, error refused.

The uncontradicted evidence showed that Vernon Watts was under a verbal contract with appellant at and prior to the time of the accident, by the terms of which he had agreed to furnish a mowing machine and operator for the purpose of mowing the shoulders along certain State highways and in consideration thereof appellant agreed to pay to him the sum of $1.25 per hour. It was further shown that about two weeks prior to the accident appellee began to operate the...