Travelers Ins. Co. v. Arnold

• Decision Date: 27 March 1964
• Docket Number: No. 16326,16326
• Parties: The TRAVELERS INSURANCE COMPANY, Appellant, v. William F. ARNOLD, Appellee.
• Court: Texas Court of Appeals

Page 78

378 S.W.2d 78

The TRAVELERS INSURANCE COMPANY, Appellant, v. William F. ARNOLD, Appellee.

No. 16326.

Court of Civil Appeals of Texas, Dallas.

March 27, 1964.

Rehearing Withdrawn April 24, 1964.

Thompson, Knight, Wright & Simmons, Timothy E. Kelley, Frank Finn, Jr. and Norman R. Rogers, Dallas, for appellant.

Howard S. Smith, Sulphur Springs, and Woodrow H. Edwards, Gilmer, for appellee.

BATEMAN, Justice.

This case arises under the Texas Workmen's Compensation Law. William F. Arnold, claiming to have been an employee of Shamrock Van Lines, hereinafter called Shamrock, made claim against the appellant as insurer of Shamrock under that law. The jury found that he was an employee and that he was totally and permanently incapacitated as a result of accidental injuries sustained by him in the course of his employment. The insurer, The Travelers Insurance Company, appeals and presents six points of error.

The first point is that the trial court erred in overruling appellant's motion for instructed verdict made when the appellee rested. Appellant waived its right to complain of this ruling by proceeding to introduce testimony in support of its defenses. The first point is therefore overruled. Robb v. Gilmore, Tex.Civ.App., 302 S.W.2d 739, err. ref. n. r. e.; 41-B Tex.Jur., TRIAL--CIVIL CASES, p. 213, Sec. 184; McDonald's 'Texas Civil Practice,' Sec. 11.26.

By its second and third points of error appellant asserts that there was no evidence, or at least insufficient evidence, to support the jury findings that appellee was an employee of Shamrock and in the course of that employment when injured. Appellant says the evidence shows that appellee was an employee of one P. J. Fleming, an independent contractor. A determination of this question necessitates a statement.

By a written Truck Lease Agreement dated June 21, 1961, Fleming leased his 1956 truck-tractor to Shamrock to be used for towing a furniture van trailer owned by Shamrock. The portions of this lease touching on this question are summarized as follows (all italics ours):

Fleming, as lessor of the equipment, agreed:

1. That the vehicle would be used exclusively for transporting household goods 'under the direction and control of Lessee.'

2. That Fleming would at his own cost and expense either drive the vehicle himself or provide necessary driver and assistants, paying their wages and all texes measured thereby.

3. That he would at his own cost provide workmen's compensation insurance 'covering said employees while operating in the service of Lessee,' or authorize Shamrock to obtain such insurance and reimburse Shamrock for the cost thereof.

4. To employ only experienced and qualified drivers and assistants and furnish Shamrock with a completed and signed employment application on each such driver or assistant.

5. To pay all expenses of the operation of the vehicle.

6. To paint and letter the leased vehicle according to Shamrock's specifications, and to remove such paint, etc. upon termination of the lease.

7. That any 'service or transportation performed by Lessor which * * * is without consent, authorization direction, and control of Lessee, * * * will be deemed an unlawful operation and a breach of this agreement and Lessee will assume no responsibility of liability for such act or acts by Lessor.'

8. To devote his services and the vehicle to the service of Shamrock exclusively in the transportation of goods, wares and merchandise, etc., 'and in connection therewith to comply with all rules and regulations and instructions of Lessee.'

9. To accept, in full payment of his services and for the use of the vehicle and 'services of his employees and assistants,' certain percentages of the revenues for the various services performed.

The contract speaks in numerous places of 'Lessor and his employees' and 'Lessor or his employees.'

One W. J. Foley was lease agent for Shamrock and signed the said lease on its behalf. He knew appellee casually, as appellee had worked for others who had leased trucks to Shamrock. Appellee had also done a small amount of work for Shamrock, helping unload trucks. Appellee received $17.25 in wages from Shamrock in 1961 (the year of the accident), although it was not shown whether any part thereof was earned during the alleged employment involved in this case. Appellee had asked Foley to help him obtain employment as a helper with an owner-operator. Foley sent word to him to 'come over and go to work.' Appellee reported to Foley at Shamrock's office, where he was put in touch with Fleming, whom he had not known previously. Fleming and appellee left on the day of the contract, or a day or two later.

Although Foley testified that appellee told him he was going to work for Fleming, appellee testified that he was employed by Foley, who gave him and Fleming the following instructions prior to their departure: to report to Washington, D. C.; to drive about forty-five miles an hour; to keep daily logs all the way; not to go over forty miles an hour in Virginia; not to sleep in the van or the tractor, or to smoke or drink on the job, and to treat the customers courteously. Appellee testified that in January 1961 Foley sent him to a Dr. Finch for his physical examination and paid for the same. Appellee testified positively that he was hired by Shamrock and was told that he would be paid by Shamrock; that he was not hired by Fleming. He was confronted with his signed statement made August 3, 1961 while still in the hospital in Maryland, in which he said that 'the employment agreement was between Mr. Fleming and myself. He was to pay me $75 per week and I was to pay all of my own expenses,' and that 'On this trip Shamrock Van Lines, Inc. was not paying me any wages as I was employed by Mr. Fleming who was to pay me $75/week.' He denied that he had made those statements to the investigator who wrote the statement, although at the end of the statement is the question, 'Have you read the above report of 1 page and 14 1/2 lines and is it correct?' Following this appellee wrote the word 'Yes' and signed the statement. Neither Foley nor any other officer or employee of Shamrock told either appellee or Fleming what route to take to get to Washington.

The van type trailer was owned by Shamrock and had its name painted on it. The tractor had painted on it 'Leased to Shamrock Van Lines, MC ICC 115257.'

Fleming and appellee paid their own food and motel bills. When they arrived in Washington they loaded the trailer with cargo destined for the West Coast and departed on June 29, 1961. About noon that day the accident occurred near Cumberland, Maryland and appellee sustained serious injuries.

Foley gave Fleming a pamphlet of the Interstate Commerce Commission containing the prescribed number of hours of service for a truck driver. Foley asked appellee to keep the log required by the Interstate Commerce Commission, since he had had previous experience keeping such records, and appellee testified that the log books were furnished by Shamrock and that he mailed to Shamrock a daily report as to his hours of work.

It is our view that the evidence was sufficient to warrant the jury in believing that Fleming was actually an employee of Shamrock, rather than an independent contractor. That being true, it would not matter whether appellee was employed by Fleming or by Shamrock, for it seems to be well settled that 'when an agent, with the authority of his principal, express or implied, employs help for the benefit of his principal's business, the relation of employer and employe between such help and the principal is thereby created and the question of whether the assistant or helper is promised any remuneration is immaterial.' Traders & General Ins. Co. v. May, Tex.Civ.App., 168 S.W.2d 267, 269, err. ref. w. o. m.

It is also now quite well settled in this state that if the employer 'has the right of control in directing, not merely the end sought to be accomplished by the employment, but as well the means and details of its accomplishment; not only what shall be done, but how it shall be done,' the relation of employer and employee is established. W. D. Haden Co. v. Ryman, Tex.Civ.App., 362 S.W.2d 133, 135, err. ref.

Application of that test to the facts of this case compels the conclusion that Shamrock had the ultimate right to control the details of Fleming's as well as appellee's work, from which it must follow that they were both employees of Shamrock. Traders & General Ins. Co. v. Frozen Food Express, 255 S.W.2d 378, err. ref. n. r. e.; Wardlow v. Newberry, Tex.Civ.App., 319 S.W.2d 437, no writ hist. Accordingly, the second and third points of error are overruled.

Appellant's fourth point of error asserts...