Copeland v. Baty (288 S.W.2d 234, 1956)

HAMILTON, Chief Justice.

This is a common law damage suit arising out of a night time accident between a private passenger car occupied by Fred Rosas and deceased Baty, and driven by the deceased Simmang, and a truck owned by the defendant Copeland, alleged by plaintiffs in effect to have been operated by the defendant Moore under circumstances which gave the defendant Copeland and the defendants Capes the right to direct and control the way the defendant Moore operated the truck.

The accident occurred in Hudspeth County, Texas, and plaintiffs sued the defendants Copeland, Moore and Capes in that county, alleging the usual acts of negligence on the part of Moore, proximate cause and damages. The defendants Moore and Copeland filed pleas of privilege seeking to remove venue to Dickens County, and the defendants Capes filed pleas of privilege seeking to remove venue to Hayes County, Texas, as the counties of residence of the respective defendants. Controverting pleas were filed .by the plaintiffs. The defendant Copeland timely filed an answer to all controverting pleas, wherein he denied that Moore was his agent, servant or employee, and alleged that Moore was an independent contractor as to him, and that Moore was in fact the special or borrowed employee under the exclusive direction and control of defendants Horace Cape and J. M. Cape, and for whom, Copeland was not responsible. Defendants Capes filed no answer to the controverting pleas, although it is clear from the evidence admitted at the hearing on the plea of privilege it is their position that the defendant Copeland was an independent contractor as to the Capes, and that Copeland retained the right to direct and control Moore in the operation of the truck, and that the amount of control that defendants Capes exercised over Moore was no more than was required to accomplish the result desired in seeing that the cottonseed which they had contracted with Copeland to haul was picked up at the proper time and place and'delivered to the proper place.

The trial of the venue question was to the court without a jury, and the court after hearing the testimony overruled all of the pleas of privilege. Defendants Copeland, Moore, and the defendants Horace Cape and J. M. Cape appealed.

The defendant Cppeland in his appeal does not contend that Moore was an independent contractor as to him, but bases his appeal upon one point, that is that the trial court erred in not sustaining his plea of privilege on the ground that the defendant Moore, the driver of the truck, was under the exclusive direction and control of the Capes at the time and place the accident occurred. The appellants Capes appealed on the point tha.t the trial court erred in overuling their pleas of privilege because plaintiffs failed to prove by a preponderance of the evidence that Moore was an employee of appellants Capes, but on the contrary he was as a matter of law not an employee of appellants Capes.

. The accident in question ■ took place on October 9, 1954, when the truck driven by the defendant Moore collided with the automobile driven and occupied by plaintiff and plaintiff’s decedents. The evidence shows Moore to be guilty of various acts of negligence. The truck belonged to defendant Copeland, and was hauling a load of cottonseed belonging to defendants' Horace Cape and J. M. Cape. The business of the Capes was buying and selling cottonseed, and their residence and place of business was San Marcos, Hayes County, Texas. Copeland had been, in the trucking business for ten years, and was operating as a public carrier under the authority of the Texas Railroad Commission, an