National Cash Register Co. v. Rider (24 S.W.2d 28, 1930)

SHORT, P. J.

The statement and result of the trial of the case,' by the Court of Civil Appeals, is as follows:

“This suit was filed by the appellee, Rider, against the appellants to recover damages for injuries to his person and property resulting from a collision between appellee’s wagon and an automobile driven by appellant Weeks. According to the averments of the amended original petition, the collision occurred on the night of November 28, 1927, on one of the streets of the city of Tyler. Appellee, with others, was riding in his wagon drawn by a pair of mules, traveling in an easterly direction. Appellant A. S. Weeks, who, it is alleged, was an employee of'the National Cash Register Company, was driving in a. westerly direction at the same time on the same highway. The two vehicles collided, resulting in the killing of one of the appellee’s- mules, damages to his wagon, and physical injuries to the appellee. The negligence charged and submitted as issues to the jury is that the appellant Weeks was driving at a rate of s]>eed in excess of 29 miles per hour; that he passed-plaintiff’s wagon at a dangerous rate of speed; that he failed to yield to plaintiff’s wagon one-half of the street in passing; that he was driving on the wrong side of the street; and that he failed to keep a proper lookout. The appellants answered by a general demurrer, general denial, and specially pleaded contributory negligence, alleging that the wagon was driven by one Jack Green, under the direction and control of the appellee; that Green was guilty of negligence in driving on the wrong or left-hand side of the street and in failing to keep a lookout.

“The case was submitted on special issues, in answer to which the jury -found as follows: (1) That the defendant Weeks was driving at a rate of speed in excess of 20 miles per hour: (2) that he was driving at such a rate of speed as to endanger the lives and limbs of other persons; (3) that he did not keep the car he was operating on the right-hand side of the road; (4) that he failed to keep a lookout for the approach of other vehicles going in the opposite direction; (5) that each of said acts of negligence was a proximate cause of plaintiff’s damages. The jury found against the appellants on the allegations' of contributory negligence, and fixed the amount of the appellee’s damage at $2,700.”

The first assignment in the application for the writ of error relates to the alleged error of the Court of Civil Appeals sustaining the action of the trial court in its refusal to instruct the jury to return a verdict in favor of . the National Cash Register Company, based upon the proposition that the evidence was not sufficient to support a finding that the plaintiff in error, Weeks, was an employee of that company. We sustain this assignment.

The defendant in error introduced Weeks as a witness, and his testimony is only partially set out in the opinion of the Court of Civil Appeals, and upon the testimony copied in the opinion the Court of Civil Appeals held that Weeks was an employee of the company, and necessarily held that he was not an independent contractor. The statement of this witness to the effect that he was an employee of the National Cash Register Company and that he was so employed at the .time of the collision, from which the damages sought to be recovered resulted, standing alone and unexplained, is sufficient, prima facie, to establish the allegation in the plaintiff’s petition that Weeks was an employee of the National Gash Register Company, notwithstandifig the fact that this statement is a statement of a conclusion of law rather than a- statement of fact, since no objection was interposed to its introduction at the time the testimony was offered. However, it further appears from the testimony of this witness, brought out upon cross-examination, that under the rules of law, which we shall discuss hereafter, this conclusion of the witness was erroneous. This explanatory testimony is unass,ailed in the record, though it could have been, even though the witness was introduced by the defendant in error, inasmuch as the witness was one of the adverse parties. Being unassailed, and being in harmony with the remainder of the testimony, it must be accepted as true in determining the question under discussion.

In every case which turns upon the nature of the relationship between the employer and the person employed, the essential question to be determined is whether the employer had the right to exercise control over the details of the work. 19 A. L. R. 240; King v. Galloway (Tex. Com. App.) 284 S. W. 942, 944. Weeks testified, among other things: “The National Gash Register Company has nothing to do with where I go and when. They have no interest in my work, other than the results, the totals of business that I turn in; * * * that the company had nothing to do with, or any interest in, how I got about over the «country; * * * that car was mine.” That Weeks was paid upon a commission basis is not necessarily a material fact in this case. In Cunningham v. Railway Co., 51 Tex. 510, 32 Am. Rep. 632, the Supreme Court of this state says on this subject: “In the first relation, that of master and servant, the master has the right to direct the conduct of the servant and the mode and manner of doing the work, and hence his corresponding liability for an improper execution of the same. * ' * *