Thurman v. Culberson, (No. 2328.)

• Court: Court of Appeals of Texas
• Writing for the Court: Higgins
• Citation: 22 S.W.2d 525
• Parties: THURMAN et al. v. CULBERSON et al.
• Docket Number: (No. 2328.)
• Decision Date: 12 December 1929

22 S.W.2d 525 THURMAN et al.
v.
CULBERSON et al. (No. 2328.) Court of Civil Appeals of Texas. El Paso. December 12, 1929. Rehearing Denied December 19, 1929.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Action by W. P. Thurman and another against J. W. Culberson and others. Verdict was directed for defendants at the close of plaintiffs' case, and plaintiffs appeal. Affirmed.

Davenport & Crain, of Wichita Falls, and Touchstone, Wight, Gormley & Price, of Dallas, for appellants.

Thompson & Barwise, of Fort Worth, and T. R. Boone and Fred Weeks, both of Wichita Falls (B. V. Thompson, of Fort Worth, of counsel), for appellees.

HIGGINS, J.

Appellant Thurman was struck by an automobile owned by the Davidson-Hamilton Company, a partnership. The car was being driven by D. J. Cutbirth. At the time Thurman was an employee of the Times Publishing Company, a subscriber under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309, as amended); the Lumbermen's Reciprocal Association being the insurance carrier. Thurman recovered compensation from such carrier.

The present action is by Thurman and the Lumbermen's Reciprocal Association against the individuals composing the firm of Davidson-Hamilton Company to recover damages for personal injuries sustained by Thurman by being struck, by the car owned by said Company and driven by Cutbirth; the association seeking to recover the amount of compensation it had been compelled to pay Thurman. At the conclusion of the plaintiff's evidence, the defendants moved for an instructed verdict, which was granted.

The sole question presented by this appeal is whether Cutbirth, at the time of the accident, was acting as the servant or employee of the defendants, or as an independent contractor.

If Cutbirth was an independent contractor, the instructed verdict was proper; if he was a servant or employee of defendants, such verdict is improper, for, upon all other phases of the case, the evidence was such as to require submission to the jury. There is no dispute in the evidence upon the controlling question.

The Davidson-Hamilton Company were automobile dealers. The Auto Sales Company was a partnership composed of Cutbirth and one Blankenship. The places of business of the companies were two blocks apart. Henry Hamilton, one of the defendants, testified:

"I am one of the defendants in this case, and I am actively connected with the Davidson-Hamilton Company. I am in charge of the sales. I am acquainted with D. J. Cutbirth.

Page 526

On or about January 30th of last year we had an agreement with Mr. Cutbirth, whereby he sold automobiles for us. We let him have certain cars to sell and he was free to sell them to whomsoever he could. He could not, however, execute bills of sale for the cars, unless it was a cash sale. Otherwise, he would have to come to us for the bill of sale. It is a part of our business, that is, of the Davidson-Hamilton Co. to sell used cars. It is necessary to sell them because we have to take them in when we sell new cars. When he sold one of our cars and took in a car the appraisal of that car was done by Mr. Cox and myself. We did not permit him to make an appraisal of cars that he took in on a sale. We did not rely on his judgment for the appraisal of cars, not even when we appraised the cars ourselves. We did not ask him what he thought a car was worth. He would suggest to us the car he wanted to take and sell, and we had the right to tell him he couldn't have a certain car. He had the right to keep a car a certain specified time, but we had the right to require him to bring the car back at any time we wanted it, or we could go get the car. He could take the cars out of town to sell them, but not take them on any trips. No, he would not have a right to take them to Fort Worth or Dallas to sell them.

"Other than what I have stated, he did not have a right to take them away except with our permission. The cars had gas and oil in them when they were turned over to him. These were used cars that he was selling. We reconditioned the car, if it needed it, before it was resold. That work was done in our own shop, and they were supposed to be ready to sell.

"If a car broke down while he was driving it, conditions would govern as to who was to repair it. If the car needed repairs and he was not responsible for its condition, it was up to us to fix it and put it in first-class condition. It was not his responsibility to keep the car in condition other than to use ordinary care about not tearing it up. If he failed to take proper care of a car while he had it, then it would be up to him to fix it up. We would not permit him to run our cars without oil or water if we knew it. I would not let him do it if I knew it.

"If we knew he was not taking proper care of the car we had the right to get it from him at any time and terminate our relations with him. In the event he sold a car on time he could not execute a bill of sale to it.

"We reserved the right to turn the purchaser down if he was not suitable. When we turned a car over to him to sell we told him how much he was to get for it and he had no right to make different terms. If he had agreed to sell a car to a prospect on our terms, we could turn the deal down if the prospect did not suit us. Mr. Cutbirth had no right to take these cars out and use them for his own personal use, for pleasure or business.

"If he had been using the cars for his own personal use we could have taken them away from him. He had no right to hire or loan them to anybody, nor to haul passengers in them. I let him use his own judgment about turning the cars over to his prospects for two or three days to drive them. We had the right to get the car from the prospect he had turned it over to, if we wanted the car.

"We would not telephone him to see certain prospects. We have regular salesmen employed. If one of our salesmen was trying to sell the same car that Mr. Cutbirth was selling, we reserved the right to give the sale to our regular salesman. He had no right to bother a prospect which the regular salesman was dealing with. We had the right to go to his prospects if we wanted to and sell him a car, we reserved that right.

"It is a part of the business of the Davidson-Hamilton Company to sell used cars. The car Mr. Cutbirth was driving when he struck Mr. Thurman belonged to us, and it was a Ford. * * *

"They (referring to Blankenship and Cutbirth) have an office and a telephone and some one in the office besides Blankenship and Cutbirth, and did have at that time. They sold other person's cars in addition to the ones we let them have. At the time in question I had 7 or 8 salesmen selling cars for us and they were under my control. They were working on a salary and commission. I had authority to direct their...