The controversy involved in this suit originated in a joint claim for compensation under the Workmen’s Compensation Act, Art. 8306, et seq., R.C.S., 1925, filed with the Industrial Accident Board by ap-pellee, Minnie L. Wood, against R. W. McKinney and L. L. Massey for compensation for the death of her son, Charles Adolphus Wood. The American Agency Lloyds was the' compensation insurance carrier for R. W. McKinney, and appellant, Traders & General Insurance Company, carried the compensation insurance for L. L. Massey. The Industrial Accident Board exonerated appellant from any liability but awarded compensation to ap-pellee of $9.60 per week for 360 weeks against American Agency Lloyds. The American Agency Lloyds duly filed its notice of dissatisfaction with the award, and on March 4, 1939, filed Cause No. 791 in the district court of Kent County in which it prayed that the award be set aside and held for naught. On March 8, 1939, ap-pellee filed Cause No. 792 in the district court of Kent County against American Agency Lloyds and Traders & General Insurance Company, as joint defendants, in
Appellant filed a plea in abatement involving questions not necessary here to mention and after the dilatory questions were disposed of the court ordered the two cases consolidated; directed that the parties replead, and upon the new pleadings the consolidated case was tried before the court and a jury on March 11, 1940. The case was submitted to the jury upon special issues and in answer thereto the jury found that on September 21, 1938, Charles Adolphus Wood sustained personal injuries in a truck collision in Kent County which resulted in his death; that at the time of receiving his injuries he was an employee of L. L. Massey and that the injuries were received in the course of his employment. They further found that Charles Adolphus Wood was not an employee of R. W. McKinney, and that he did not receive the injuries in the due course of any employment with R. W. McKinney. They found that appellee was the sole and exclusive beneficiary of Charles Adolphus Wood and that manifest hardship and injustice would result if the compensation should not be paid in a lump sum.
Based upon the verdict of the jury the court rendered judgment in favor of ap-pellee against appellant, Traders & General Insurance Company, for the sum of $2,333.76, to be paid in a lump sum, and that appellee recover nothing against American Agency Lloyds.
Appellant duly presented its motion for a new trial, which was overruled by the court, and it duly excepted, gave notice of appeal, and has perfected an appeal to this court. A large number of assignments of error and propositions of law are presented and urged by appellant, but in our opinion the case is controlled by one issue which involves the question of whether or not Charles Adolphus Wood was the employee of appellant’s insured, L. L. Massey, at the time he received the injuries which resulted in his death.
No objection was made by appellee to the judgment entered by the court denying her a recovery against American Agency Lloyds and no appeal has been prosecuted therefrom by her. We are not concerned, therefore, with the question of whether or not appellee was entitled to a judgment against American Agency Lloyds.
As we have stated, the jury found that, at the time he received the injuries which caused his death, Charles Adolphus Wood was an employee of L. L. Massey and that his injuries were sustained while he was in the course of his employment with Massey. If there is any evidence shown by the record to support the jury’s findings in these respects, the judgment must be affirmed; otherwise, it cannot be permitted to stand. It becomes necessary, therefore, to review and analyze the testimony.
Art. 8309, Sec. 1, of the statute defines an employee as meaning every person in the service of another under any contract of hire, expressed or implied, oral or written. It is held by our courts that in order to be an employee the relation of master and servant must exist in the sense that one .party has the right of ultimate control over the other. Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449. In order to recover against appellant, it was necessary, therefore, for ap-pellee to show that such relationship existed between her deceased son and L. L. Massey whose compensation insurance was carried by appellant. The record shows that R. W. McKinney had procured from the Texas Highway Department a contract for the construction of a road between Spur and Jayton lying principally in Kent County. It is not shown that Massey was a party to this contract nor that he had anything whatever to do with the construction of the road in so far as that contract was concerned. Massey had for a number of years been engaged in the business of furnishing trucks to contractors for road construction and had formerly owned a number of them. In order properly to prosecute the • construction work it was necessary that McKinney have a large number of trucks to convey the base material, which was composed of caliche, from the caliche pit to the places on the road where it was needed. In order to procure these trucks McKinney entered into a contract with Massey which provided that Massey, as lessor, would rent or lease to McKinney trucks and trailers for the purpose of
The record shows that Massey did not own any trucks when this lease agreement was made and it was necessary, therefore, for him to lease or hire the necessary trucks from other parties. He arranged with the owners of some of these trucks to drive one of the trucks owned by them and procure drivers for others that were satisfactory to Massey. To quote or even analyze in detail the testimony of the witnesses who testified concerning the manner and method used in the operation of the trucks would extend this opinion to unreasonable lengths. Suffice it to say that a number of the witnesses testified that Massey gave them instructions concerning the manner in which the trucks should be operated and others made general statements to the effect that Massey was on the construction job a number of times and instructed them about the matter of operating the trucks. Some of the truck drivers who so testified did not attempt to detail the instructions given to them by Massey, but Massey, himself, and some of the other witnesses testified that Massey instructed all of the drivers, after they had begun work on the construction job, to be careful with the trucks and not to drive fast. None of the witnesses testified, however, that Massey gave any instructions other than these precautionary warnings concerning the matter of speed and the care with which the trucks should be handled and' operated. The record shows that C. A. Dittmore was a son-in-law of Massey and had been connected with Massey in various contracts concerning road construction for many years; that Dittmore had formerly owned some forty or more trucks which he leased to road construction contractors for the same purpose for which Massey leased the trucks to McKinney in this instance; that Dittmore was familiar with road construction, and the manner and method by which trucks hauling road material should be operated, and it is undisputed that Dittmore was employed by McKinney as truck foreman on the work here involved; that McKinney paid his salary and that he did not draw any salary or wages from Massey for his work as such. Dittmore testified also that one Joe Shawver was superintendent on the construction job for McKinney and that Shawver was Dittmore’s immediate superior, but that neither Shawver nor McKinney had anything to do with the trucks except through him. There is no testimony in the record by any witness to the effect that Massey gave any instructions concerning the trucks or had anything whatever to do with them after he leased the trucks, hired the drivers, and placed them on the construction job for McKinney except those of a precautionary nature concerning the speed and care in their operation. Massey testified that he went by the construction job about once a month to collect the lease money due him bj McKinney for the trucks and some of the other witnesses testified that Massey was on the job or “came by the job” about every two weeks. In the matter of directing the manner in which the trucks should be loaded with the caliche at the pit and conveying it to the places in the road where it was needed, the manner in which it should be unloaded and the places on the road where it should be unloaded were all directed by Dittmore and other employees of R. W. McKinney. It is not shown, or even intimated by the testimony that Massey was a partner or otherwise connected with McKinney or that he was in any sense responsible for any of the obligations as
We do not find anything in all of the testimony that would warrant the conclusion that, in loading the caliche on the trucks, removing it from the caliche pits or beds to the places on the highway where it was needed, and in unloading it at such places, was directed, supervised or in any manner controlled by Massey or anyone authorized by him to do so. No witness testified that Massey had any authority to assume such power and, as we interpret the testimony, no conflict is revealed between the witnesses on this point. As we have already said, the witnesses who ap-pellee contends gave testimony to the effect that Massey did exercise such power and control only made the general statement that he instructed them and gave them directions. The only witnesses who attempted to explain such instructions testified that the instructions given by Massey pertained to the speed and manner in which the trucks should be handled.
Many definitions of the relationship of master and servant as applied to the compensation .statutes have been given by our courts and they all converge into the accurate definition approved by the Commission of Appeals in Shannon v. Western Indemnity Co., 257 S.W. 522, 523. In that case Judge German quoted Street on Personal Injuries as follows: “No better test can be applied than to say that the relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished by the employment of another, but as well the means and details of its accomplishment; ‘not only what shall be done, but how it shall be done.’ ”
This general conception of the meaning of our statute is acquiesced in by both parties to this appeal and we are of the opinion that the record in this case wholly fails to reveal any basis in the testimony for the finding of the jury to the effect that Charles Adolphus Wood was the employee of L. L. Massey when he received the injuries which resulted in his death. Southern Surety Co. v. Shoemake, Tex.Com.App., 24 S.W.2d 7; Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449; Manning v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 67 S.W.2d 389; Tanneberger v. Massey, Tex.Civ.App., 124 S.W.2d 949; Hartford Accident & Indemnity Co. v. Addison, 5 Cir., 93 F.2d 627; Ellis v. Associated Industries Ins. Corp., 5 Cir., 24 F.2d 809; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480.
It was shown by the testimony that Charles Adolphus Wood, together with some of the other truck drivers employed on the Kent County job, were not only employed by Massey for the work in Kent County, but that immediately prior to engaging in the work on the Kent County job, under the directions of Massey, they operated the trucks for him at other places, one at Tehuacana and another at Ralls, both of which were far removed from the Kent County job and that they were instructed by Massey to leave those places and go to the Kent County construction job and work there. It was further shown in this connection that C. A. Dittmore had been in charge of other work as the agent or superintendent of' Massey and appellee contends with much force that, since it is
Dittmore testified, without dispute, that he had the power to discharge the drivers of the trucks at any time their services were not satisfactory. It was shown by the testimony that all of the truck drivers were listed on the payroll of McKinney and that each time their wages were paid to them they signed McKinney’s payroll. More-, over, it was shown, without dispute, that, during the period of time involved, Massey had only two men on his payroll and they were employees in his office at Austin; that none of the truck drivers on the Kent County job were reported to appellant by Massey as being his employees covered by appellant’s insurance policy and no premiums were paid by him to appellant for compensation insurance on them. It was not shown, nor even suggested, that Massey fraudulently or purposely concealed from Wood the fact that he was acting as the agent of McKinney in employing the truck drivers and we find no basis in the testimony for the findings of the jury to the effect that, at the time of his injury and death, Charles Adolphus Wood was actually the employee of L. L. Massey or that he was acting in the course of employment with Massey at the time of his injury and death. It is our opinion, furthermore, that the circumstances do not warrant the conclusion that Wood did not know he was working for McKinney nor that he did not agree to, or acquiesce in, such employment.
At the close of the testimony appellant presented and urged a motion for a peremptory instruction directing the jury to return a verdict in its favor which was refused by the court. In our opinion the