Thate v. Texas & P. Ry. Co., 20104

• Decision Date: 23 January 1980
• Docket Number: No. 20104,20104
• Parties: Richard THATE, Appellant, v. TEXAS & PACIFIC RAILWAY CO., Appellee.
• Court: Texas Court of Appeals

Page 591

595 S.W.2d 591

Richard THATE, Appellant, v. TEXAS & PACIFIC RAILWAY CO., Appellee.

No. 20104.

Court of Civil Appeals of Texas, Dallas.

Jan. 23, 1980.

Rehearing Denied Feb. 28, 1980.

Weldon Parkhill, Grand Prairie, Oscar Mauzy, Dallas, for appellant.

Jack Pew, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellee.

Before AKIN, ROBERTSON and HUMPHREYS, JJ.

ROBERTSON, Justice.

This is a suit for personal injuries sustained by Richard Thate, appellant, when, in order to avoid a falling stanchion which was used to stabilize trucks transported by the railroad, he jumped to the ground from a flatbed railroad car owned by appellee, Texas & Pacific Railway Company. Thate sought recovery on the following alternative theories: 1) strict liability under the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-43 (West 1972 & Supp.1979) and negligence, both pursuant to the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51-60 (West 1972); 2) common law negligence as to a third party, as provided in the Texas Workers' Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1980); and 3) strict liability in tort. The jury found the railroad liable under each theory, but also found Thate negligent on one ground. Accordingly, comparative negligence was assessed at 20% to Thate and 80% to the railroad. After reviewing each party's motion for judgment, the trial court granted the railroad's motion for judgment notwithstanding the verdict and rendered a take-nothing judgment against Thate. By his single point of error, Thate challenges that judgment. We hold that there was evidence of probative value supporting the jury's verdict of common law negligence, and, therefore, that the trial court erred in granting judgment notwithstanding the verdict. Accordingly, we reverse and render.

On January 15, 1975, Thate was employed by Texas & Pacific Motor Transport Company to load and unload trailers on flatbed railroad cars supplied by the railroad. The employees of Motor Transport, while attempting to load a trailer on a particular flatbed car, discovered that one of the stanchions would not lock in its proper position. Normally, when problems arose with the railroad cars, the practice was to contact the railroad to have the problem remedied. Following this practice, the railroad's car repairman was called to repair the stanchion. A chain was used to pull the stanchion up to the proper position and when the car repairman believed the stanchion had locked in that position, he advised Thate to remove the chain. When Thate complied, the stanchion fell and he was forced to jump off the car to avoid being hit. Thate's injuries were allegedly incurred as a result of this occurrence.

In granting a judgment notwithstanding the verdict, a trial court must conclude that no evidence of probative value exists in support of the jury's findings. Therefore, on appeal of such a judgment, a court of civil appeals considers only admissible evidence and inferences tending to support the verdict, and disregards all evidence and inferences to the contrary. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 649-50 (Tex.1977); McDonough Brothers, Inc. v. T. C. Bateson Construction Co., 575 S.W.2d 397, 398 (Tex.Civ.App. Beaumont 1978, writ ref'd n. r. e.).

Federal Employer's Liability Act

Thate's first ground for recovery was that the railroad was liable under the terms of the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51-60 (1972). The FELA is an exclusive remedy under which railroad employees can recover against their employer for on-the-job injuries resulting from the acts of their employer or other employees. Thate contends that he was entitled to sue under this act because he was a "borrowed servant" of the railroad at the time of the incident. The railroad argues that, as a matter of law, Thate was estopped from claiming he was their borrowed servant because he received benefits under the Texas Workers' Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1980), on the representation that he was an employee of Motor Transport. After reading the cases cited by both parties, it appears that the only case directly addressing the question of whether receipt of state workers' compensation benefits estops one from suing under FELA is Barrera v. Roscoe, Snyder & Pacific Railway, 385 F.Supp. 455 (N.D.Tex.1973), aff'd, 503 F.2d 1058 (5th Cir. 1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975). Barrera prosecuted a claim under the Texas Workmen's Compensation Act and received benefits. Later he filed an action claiming benefits under the FELA, conceding that he was an employee of RSP Railway Equipment Corporation, but contending that he came within the FELA because Equipment Corporation was the alter ego of RSP Railway. The court in Barrera concluded that there was no evidence to support the alter ego contention. Additionally, that court made the alternative holding that RSP Railway was entitled to judgment because Barrera was

estopped to assert a claim against the Railroad under the FELA by reason of his having successfully prosecuted a claim under the Texas Workmen's Compensation Act on account of the injuries involved in this case. That remedy was inconsistent with a claim under the FELA because he had to be an employee of the Equipment Corporation to collect workmen's compensation benefits.

Id. at 462. The railroad argues that this holding should control here. Thate argues that a fact issue exists in the present case concerning whether he was an employee of the railroad. As a result, he contends that Barrera can be distinguished from the instant case because Barrera specifically admitted he was the employee of Equipment Corporation, thus precluding any issue of fact concerning whether Barrera was an employee of the railroad. We conclude that no fact issue exists in the instant case concerning whether Thate was an employee of the railroad because, by his election to represent himself as an employee of the trucking company for purposes of receiving benefits under the Texas Workers' Compensation Act, Thate is estopped from now claiming that he was an employee of the railroad for purposes of recovering under the FELA.

In addition to the federal court's decision in Barrera, we find support for the estoppel theory in decisions of Texas state courts. The railroad does not indicate on which theory of estoppel it relies. Equitable estoppel requires a showing of detrimental reliance by the party asserting the theory; no such reliance has been shown here. Judicial estoppel requires pleadings or statements made under oath; no showing has been made here that such statements were made by Thate. An additional type of estoppel, however, has been employed in Texas. See Metroflight, Inc. v. Shaffer, 581 S.W.2d 704 (Tex.Civ.App. Dallas 1979, writ ref'd n. r. e.) (construing Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977)). In Metroflight this court concluded that Huckabee held that when a party has filed suit against one party and subsequently settled, and later filed suit against another party concerning a related transaction and seeking a remedy based on facts inconsistent with those alleged in the first suit, a species of judicial estoppel is effective to preclude the second suit. This theory is based upon the "principle that a party should not be permitted to abuse the judicial process by obtaining one recovery based first on affirming a certain state of facts, and then another recovery based on denying the same state of facts." Id. at 709; see Johnson v. Bingham, 251 S.W. 529, 535-36 (Tex.Civ.App. Galveston 1923), aff'd on other grounds, 265 S.W. 130 (Tex.Comm'n App. 1924, judgmt. adopted). The question for us then becomes whether such a situation exists here.

To answer this question we examine the theories under which liability is determined for the Texas Workers' Compensation Act and the FELA. In an action to determine which of two subscribing employers is liable for workers' compensation due an employee, Texas courts have applied the borrowed servant or special employee doctrine. ¹ According to this doctrine the injured worker is held to be the employee of the employer who had the right of control over the details of the work at the time of the injury, and that employer's workers' compensation insurer is liable for the statutory benefits due. ² E. g., Associated Indemnity Co. v. Hartford Accident & Indemnity Co., 524 S.W.2d 373, 376 (Tex.Civ.App. Dallas 1975, no writ); United States Fire Insurance Co. v. Warden, 471 S.W.2d 425, 428 (Tex.Civ.App. Eastland 1971, writ ref'd n. r. e.); Employers Casualty Co. v. American Employers Insurance Co., 397 S.W.2d 292, 295 (Tex.Civ.App. Amarillo 1965, writ ref'd n. r. e.). Since this doctrine is also employed to determine liability under the FELA, Kelley v. Southern Pacific Co., 419 U.S. 318, 324, 95 S.Ct. 472, 476, 42 L.Ed.2d 498, 505 (1974), these remedies are inconsistent in that they require affirming in one instance one set of facts (that one is the employee of an employer which is not a railroad) and in another instance, a different state of facts (that one is the employee of a railroad). Therefore, we conclude that, under the facts of this case, receiving benefits under the Texas Workers' Compensation Act is sufficient to estop one from subsequently seeking recovery under the FELA. Aetna Life Insurance Co. v. Bocanegra, 572 S.W.2d 355, 356 (Tex.Civ.App. San Antonio 1978, writ granted); see Metroflight, Inc. v. Shaffer, 581 S.W.2d at 710.

Common Law Negligence

We next consider Thate's theory of recovery based on common law negligence. Special issues thirty-seven through forty inquire whether the railroad's car repairman advised Thate that the stanchion was locked when it was not, whether Thate relied on that statement, and whether such an act was negligence, proximately causing his injuries. ³ In support of these...