Western Indemnity Co. v. Prater , 1919 Tex. App. LEXIS 831 ( 1919 )

The assignments present only this question: Did the testimony warrant the finding that O. L. Prater was an "employé" of the Athens Pottery Company within the meaning of the Workmen's Compensation Law, and engaged in service as such at the time he was killed? Appellant's contention, if sustained, would require the question to be answered in the negative, for it insists it appeared from "the undisputed evidence that the deceased at the time of his death was acting as an independent contractor, and not as an employé."

In the law referred to (Acts 1917, p. 291 [Vernon's Ann.Civ.St.Supp. 1918, art. 5246 — 82]) the word "employé" as used therein is declared to mean:

"Every person in the service of another under any contract of hire, * * * except one whose employment is not in the usual course of trade, business, profession, or occupation of his employer."

In deciding the question it will be assumed that the definition in the statute does not distinguish the "employé" to which it applies from a "servant" at common law, and therefore that the distinction made by that law between a "servant" and an "independent contractor" applies in the case. Litts v. Lumber Co. (N.Y.) 120 N.E. 730.

"The main test," says Mr. Bailey (1 Master Servant, p. 107), "in determining whether one is an independent contractor or merely a servant, is whether the employer has the right to control the mode of doing the work. Ordinarily, if the employer retains control, the relation is that of master and servant rather than of contractee and contractor; but if the employé has the right of control he is generally an independent contractor."

"Only such an employé," said the court in Moore v. Kopplin, 135 S.W. 1033, "as is free to do the work he is employed to do in his own way without directions, orders, let, or hindrance from his employer, being responsible to him only for the result, is regarded as" an independent "contractor. In other words, he must be independent and free from the control of his employer."

It cannot be denied that much of the testimony tended to show that Prater, while hauling the clay, was free from control by the pottery company; but we think enough of it was to the contrary of that view to warrant the finding in question.

It will be noted that it appeared from testimony referred to, or set out, in the statement above, that Prater was hired by Foreman Hunt and was "supposed to do what Hunt wanted him to do or be discharged"; that the company had a right to tell him when to begin and when to quit hauling, and that, if Hunt "didn't want him to haul clay" he would "put him at something else"; that Hunt directed him where to get clay, and his wagon was loaded under "specific directions" from Hunt; that he unloaded the clay at places designated by the company; that, while he at times hired a man to drive his wagon instead of driving it himself, if the man he hired was incompetent or did not suit Hunt, Hunt "would send him back home"; and that he always asked Hunt if he "wanted to lay off."

When the testimony pointed out is considered with reference to the test recognized by the authorities, and stated by Mr. Bailey in the excerpt above, we think it must be held to have been sufficient to support a finding that Prater at the time in question was not an independent contractor, but was an employé of the pottery company. If that testimony was true, the pottery company had "the right to control the mode of doing the work" Prater was engaged in doing at the time he was killed. For cases with facts similar to the facts shown by the testimony above referred to in which similar conclusions were reached, see Van Simaeys v. George R. Cook Co., 201 Mich. 540, 167 N.W. 925; Tuttle v. Lumber Co., 192 Mich. 385, 158 N.W. 875, Ann.Cas. 1918C, 664.

The judgment is affirmed.