
    KIRBY LUMBER CO. v. McGILBERRY et al.
    (No. 347.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 11, 1918.
    Rehearing Denied Oct. 16, 1918.)
    1. Master and Servant <§=>367 — Workmen’s Compensation Acts — Relation oe Parties —“Employé. ”
    Where contract provided that buyer of timber should reimburse seller for wages paid scalers, not to exceed $50 per month each, a scaler employed by, and who worked under direction of, seller, at a salary of $70 a month, was not an employé of buyer, within Workmen’s Compensation Act, arts. 5246h, 5246yyy.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Employe,]
    2. Negligence <§=>88 — Contributory Negligence-Sleeping.
    A person who was injured through lumber company employes’ negligence in felling a tree, and who was not an employe of the company, cannot recover damages from company where his own negligence in lying down and going to sleep near the tree contributed to injury.
    Appeal from District Court, Harris Coun-tyJ. D. Harvey, Judge.
    Action by Valeria McGilberry and others against Kirby Lumber Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue and W. L. Cook, all of Houston, for appellant. Hutcheson & Bryan, of Houston, for appel-lees.
   ■HIGHTOWER, C. J.

This was a suit by the surviving wife and children of one Sanford McGilberry, deceased, as plaintiffs, to recover damages against the Kirby Lumber Company, said plaintiffs contending that the death of Sanford McGilberry was caused by negligence on the part of the servants and agents of said Kirby Lumber Company. The cause was tried with' a jury in the court below, and was submitted upon special issues, all of which were answered by the jury, and upon the verdict so returned the trial court entered judgment in favor of plaintiffs in the sum of $7,495, with interest thereon at the legal rate from the date of the judgment.

When the verdict was returned the defendant, Kirby Lumber 'Company, filed a motion praying the court to enter judgment in its favor upon the verdict of the jury, which motion was overruled, and to this action of the court said defendant duly excepted.

After the motion for judgment was overruled, and after judgment was entered in favor of plaintiffs, as before stated, defendant filed a motion for a new trial, which was also overruled and exception duly taken, and the cause h'as been properly brought here, by .appeal on the part of the Kirby Lumber Company, for review.

In the amended original petition of the appellees, and upon which the case proceeded to trial, it was alleged, substantially, that Sanford McGilberry met his death as the result of a tree being felled upon him by em-ployés of appellant, Kirby Lumber Company. It was alleged th'at McGilberry, at the time of his death, was an employs connected with logging operations being carried on by appellant in the vicinity where the accident occurred; that by virtue of certain contractual relations! between the Kirby Lumber Company, appellant, and the Houston Oil Company of Texas, McGilberry was constituted an employs of the Kirby Lumber Company in the work he was doing, which was scaling logs or timber; but, in the alternative, that, if Mc-Gilberry was not in fact an employe of the Kirby Lumber Company, nevertheless he was entitled to that degree of care which would be owing to an employs of said Kirby Lumber Company by reason of the character of the work toe was doing. It was alleged, substantially, that a short time prior to the noon hour on the day he was injured McGilberry .went to a point near a red heart log, which he expected later to be called upon to Sicale, and that shortly thereafter he lay down and went to sleep, and that while he was asleep certain employés of the Kirby Lumber Company, known as sawyers, negligently felled a tree upon him, which 'caused his death. The specific grounds of negligence alleged on the part of said Kirby Lumber Company sawyers were as follows: (a) In carelessly and negligently permitting the tree which they were sawing to fall upon McGilberry; (bi) in permitting McGilberry to remain in the position he was while the tree was being felled, and in felling the tree while he was in that position; (c) negligence in failing to give a warning shout or signal before the tree was felled in order to give McGilberry time to escape; (d) negligence in failing to inspect the radius of the tree about to be felled with special reference to the direction in which it was being bedded to fall, in order to determine whether or not any person might be in danger. The plaintiffs laid their damages in the sum of $jl5,000, and prayed for recovery in that amount.

Appellant, Kirby Lumber Company, answered by general demurrer, special exceptions, general denial, and also by a special plea of contributory negligence on the part of Sanford McGilberry in lying down and going to sleep where he was at the time he was struck and killed by the falling tree.

By a supplemental petition appellees alleged that the Kirby Lumber Cdmpany was not a subscriber under the Teias Workmen’s Compensation Act (Vernon’s Gayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzz¿), and that, because of the relation of McGilberry to the work being done, plaintiffs were entitled to the benefits of said statute, which, among other things, abolishes contributory negligence as a complete defense in bar in cases covered by its provisions.

The jury found, in answer to one of tbe special issues submitted, that the sawyers, who were servants of th'e Kirby Lumber Company, and who felled the tree which, killed McGilberry, were guilty of negligence, in that they failed to inspect the radius of the tree which was about to be felled by them, and before it was felled, with' special reference to the direction in which it was being bedded to fall, in order to determine whether or not any person might be in danger of being struck and injured by such tree, and also, further, that this negligence was a proximate cause of the death of said McGilberry. Th'e jury also found, however, that said servants of the Kirby Lumber Company did give the usual and customary warning or signal before said tree was felled, and that such warning or signal was given in time, had it been heeded, to permit McGilberry to escape. The jury also found, affirmatively, in answer to a properly submitted special issue, that McGilberry. was guilty of contributory negligence in lying down and being asleep where he was at the time he was killed.

Appellant, Kirby Lumber Company, in its brief presents a number of assignments of error, and these assignments together raise three! principal questions. The first assignment has reference to the refusal of the trial court to enter judgment in favor of appellant upon its motion therefor; and the second assignment challenges the action of the trial court in refusing to peremptorily instruct the juryto return a verdict in favor of appellant; and the third assignment complains of the refusal of the trial court to admit in evidence testimony of certain witnesses tendered by appellant for the purpose of showing that Mc-Gil'berry was an employé of the Houston Oil Company of Texas at the time of his death', and was not an employé of appellant, Kirby Lumber Company.

Now, if appellant’s first assignment of error, complaining of the action of the trial court in refusing to enter judgment in favor of appellant upon the jury’s verdict, should be sustained, then a consideration of any of the other assignments would be uncalled and unnecessary. It is without dispute in the record that Sanford McGilberry was what is known in sawmill parlance as a log scaler or timber scaler, and at the time of his death was engaged in that occupation, and was scaling logs which were being cut under a contract between the Houston Oil Company of Texas and the Kirby Lumber Company. The Houston Oil Company of Texas was the seller of the timber being so scaled, and the Kirby Lumber Company was the purchaser thereof. The written contract between the Houston Oil Company of Texas and appellant, Kirby Lumber Company, was introduced in evidence on the trial below, and is fully shown in the record before us; • but, after a careful inspection and consideration of this contract, we conclude that paragraphs 3 and 5 thereof are the only provisions in the contract th'at could possibly have any reference to the material question under this assignment, which question is this: Was Sanford McGilberry, at the time he was injured and killed, an employé of the Kirby Lumber Company? (Paragraph 3 of said contract reads as follows:

“Said timber shall be scaled when loaded on the cars of the party of the second part (Kirby Lumber Company) or at the skidways in the woods, or at the mills, or elsewhere, as directed by the party of the first part (Houston Oil Company of Texas), and said party of the first part (Houston Oil Company of Texas) may appoint such scalers as it may deem requisite, whose duty it shall be to scale and measure such timber. The party of the second part (Kirby Lumber 'Company) shall reimburse the party of the first part (Houston Oil Company of Texas) for the wages of such scalers, not to exceed fifty dollars ($50.00) per month each. Monthly reports shall be made in duplicate by such sealers to the parties hereto and settlements hereunder shall be made and based thereon.”

The fifth paragraph reads as follows:

“Said timber shall be cut in a careful and prudent way, and the trees felled shall be so felled as to preserve the young timber and avoid abuse and injury to such young timber and saplings, and no trees under twelve (12) inches, in diameter shall be cut from, said lands for timber skids or other purposes.”

There is no brief on file in this court for the appellees, but the case was orally argued by counsel for appellees, and at the argument we gathered that it was the contention of counsel for appellees that the provisions of the written contract just above quoted, and especially paragraph 3 thereof, had the effect to constitute and make Sanford McGilberry an employé of the Kirby Lumber Company, mainly for the reason that it was provided in paragraph 3, as above quoted, that the Houston Oil Company of Texas was to be reimbursed by the Kirby Lumber Company, not to exceed $50 each per month, for wages paid by the Houston Oil Company of Texas to its log scalers. In other words, it seemed to be the contention of counsel for appellees that, because of the' provisions in said paragraph 3 of the contract, the Kirby Lumber Company bound itself to reimburse the Houston Oil Company of Texas in a sum not to exceed $50 per month for each log scaler employed by the Houston Oil Company, that such provision of itself had the effect to make Sanford McGilberry an employé of the Kirby Lumber Company, and that the said McGilberry was an employé of the Kirby Lumber Company, as defined by the Texas Workmen’s Compensation Act, which was in force at the time McGilberry met his death.

According to the undisputed evidence introduced on thel trial below, Sanford McGil-berry had been selected and employed by the Houston Oil Company of Texas to scale timber sold by said company to the Kirby Lumber Company, and the 'Houston Oil Company, in consideration for his services in that capacity, regularly paid to McGilberry $70 per month, and his name was carried upon the pay roll of the Houston Oil Company of Texas as its employé in the capacity of log scaler. It was also shown, without dispute in the record, that the Kirby Lumber Company had nothing to do with the selection or employment of Sanford McGilberry, and that the Kirby Lumber Company had or exercised no control or direction whatever over said McGilberry in the discharge of his duties as log scaler for the Houston Oil Company, and had no right to direct or control him in the discharge of his duties as such'scaler, and had no right to discharge him; but, on the contrary, it was affirmatively shown that the Houston Oil Company-of Texas alone selected and employed the said McGilberry, and that he was under the direction and control of the Houston Oil Company of Texas in the discharge of his duties as log scaler, and that said company alone had the right to discharge him. In this connection we quote, because it is clear and readily understood, the testimony of Oswald S. Parker, a witness sworn in behalf of appellant, as follows:

“I live in Houston. My profession is that of a lawyer. My office is on the ninth floor of the iScanlan building. My partner is Judge T. M. Kennerly. My partner and I are joint attorneys for the Houston Oil Company of Texas. "VVe have been engaged in that capacity for three years. We were so engaged in July, 1914. I think I am familiar with all of the agreements between the Houston Oil Company and the Kirby Lumber Company, as affecting the matter of scaling.
“The instrument handed me by counsel (meaning the contract between the Kirby Lumber Company and the Houston Oil Company) purports to be a contract of 1901 between the Houston Oil 'Company of Texas and John H. Kirby; that contract is still in force as construed, and in some respects, I believe, modified, by the decree of the United States District Court for the Southern District of Texas, which has become a part of the contract between the parties, but I see nothing in this paragraph 3, as I recall, that has been changed in any manner. This is the decree of July 8, 1908, that I refer to. Except so far as it is modified by this decree, this contract is in force.
“I certainly am acquainted with the practical workings of the parties under the contract, so far as the Houston Oil Company is concerned in respect to the scalers. Under the decree it employs what are known as contract scalers, composed of a chief scaler, who is an employé of the Houston Oil Company of Texas, and certain scalers working under him-, who actually scale the timber. These scalers scale the timber before it is moved from where it is felled in the woods, make out triplicate reports, send one to the Houston Oil Company of Texas, at Houston, for its records, to furnish the basis of the charge against the Kirby Dumber Company for the timber cut, and send a duplicate to the Kirby Lumber Company by the same manner, so they can check against our charge statement and keep the third copy for reference. The Houston Oil Company of Texas has the exclusive right to discharge these men. We do not allow the Kirby Lumber Company to interfere with them in any way; these men are upon the pay roll of the Houston Oil Company of Texas, and they receive their pay from that company. As to other scalers working in the employment of the Kirby Lumber Company, at times only, the Kirby Lumber Company has employed its own sealers to work opposite these Houston Oil Company scalers, in order to check their work, and see if the Kirby Lumber Company had any objection to the method of scaling carried on by our scalers. Sometimes they have made objections, and they have been taken up and thrashed out, but the sealers employed by the Kirby Lumber Company are merely what is known as check sealers, who have nothing to do with the reports, and have nothing to do with the basis on which the charges are made. Our scalers are entirely independent of the Kirby Lumber Company, and we have nothing to do with them.”

On cross-examination hie further testified:

“There is a check scaler which the Houston Oil Company employs entirely independent of the scalers of the Kirby Lumber, Company, which X have referred to. The Houston Oil Company of Texas employs certain traveling scalers who go from place to place and check the work of other scalers. They are included in the contract, according to our construction. The Kirby Lumber Company does not pay these sealers that I have just referred to. They do, under the contract and decree, contribute to the Houston Oil Company of Texas a certain amount, which is supposed to reimburse for a part of the cost of having the timber scaled; but the authority to do it, and the duty to have it done and to employ scalers, is all on the Houston Oil Company of Texas. As to the reimbursement being for the scalers I have just referred to, I will say that I know what counsel is referring’ to; that is, in section 3, where it says that the party of the second part, Kirby Lumber Company, shall reimburse party of the first part, Houston Oil Company, for the wages of such scalers,, not to exceed $50 per month each. That is done even to this time, but it is paid direct under that to the Houston Oil Company of Texas.”'

There is no contention, in so far as is disclosed by the record before us, that appellant, Kirby Lumber Company, ever claimed the right to exercise, or ever, in fact, exercised, any direction or control whatever over log scalers employed by the Houston Oil Company, nor is there any contention on the part of appellees that the Kirby Lumber Company had the right to employ or discharge any of the scalers for the Houston Oil Company, but, as stated above, it seemed in the record to be the contention of counsel for appellees that the provision in the contract between the Houston Oil Company and the Kirby Lumber Company for reimbursement for part of the wages paid scalers by the Houston Oil Company had the effect to constitute McGilberry an employé of the Kirby Lumber Company.

In view of the finding by the jury that Sanford McGilberry was himself guilty of negligence which contributed to his death, the ap-pellees were not entitled to a judgment in their favor, notwithstanding the jury also found that the servants of the Kirby Lumber Company, who felled the tree which killed McGilberry, were guilty of negligence, unless McGilberry was' an employé of the Kirby Lumber Company at the time of his death, and sustained the injuries which resulted in his death in the course of his employment. It was admitted upon the trial below that the Kirby Lumber Company was not a subscriber under the provisions of the Workmen’s Compensation Act of this state, hut whether the Houston Oil Company of Texas was such subscriber does not appear from the record.

Section 1 of the Texas Workmen’s Compensation Act (Acts 33d Leg. c. 179) reads as follows:

“In an action to recover damages for personal injuries sustained by an employé in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:
“1. That the employé was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such em-ployé.”

“Employé” is defined in the act as follows:

“ ‘Employé’ shall include every person in the service of another under any contract of hire, express or implied, oral or written, except one whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of the employer.”

Now, if Sanford McGilberry, at the time of his death, was not in the service of the Kirby Lumber Company under a contract of hire, express or implied, oral or written, then he was not an employé of'the Kirby Lumber Company at the time of his death, and the Workmen's Compensation Act of this state cannot be applied and cannot affect the liability of the Kirby' Lumber Company for the death of Sanford McGilberry, but the liability of the Kirby Lumber Company in such event must depend upon the law as it was prior to the passage of that act by the Legislature of this state; and under the law as it obtained prior to that act, and still obtains as to all persons not affected by that act, MeGilberry’s negligence, asi found b(y the jury, constituted an absolute defense in bar of any recovery by the appellees in this case.

And since it affirmatively appears, without dispute, from the record before us, that Sanford McGilberry was selected and employed by the Houston Oil Company of Texas; that he was carried on the pay roll of the Houston Oil Company of Texas as its em-ployé; that his wagesi were paid to him by th'e Houston Oil Company of Texas; that the Houston Oil Company alone had the right to direct and control the said McGilberry in the discharge of his duties as log scaler and the right to discharge him; and that the Kirby Lumber Company, appellant, had no such right to employ, direct, control, or discharge the said McGilberry — we are of the opinion that the said Sanford McGilberry was not, at the time of his death, an employé of the Kirby Lumber Company but was an employé of the Houston Oil Company of Texas, notwithstanding the provision as contained in paragraph 3 of the contract between said companies to the effect that the Kirby Lumber Company would reimburse the (Houston Oil Company for wages paid timber scalers by said last-named company, not to exceed $50 per month each. It is clear from the provisions of the contract between said companies that the presence of McGilberry at the place where he met his death was for the purpose of protecting the interests of the Houston Oil Company of Texas in the sale of its timber to the Kirby-Lumber Company; that is to say, it was the purpose of the Houston Oil Company in having him there to see that its interests were properly protected as against the Kirby Lumber, in felling and taking its timber, and this, doubtless, was the reason for the provision in the contract, as shown above, that the Houston Oil Company, the seller of the timber, should have the right to select and employ its own scalers, and not have to depend upon such reports as the Kirby Lumber Company might furnish to it in that connection. There was no contract of employment of McGilberry by the Kirby Lumber Company either written or oral, express or implied, as shown by the undisputed record in this case, and therefore he was not an employé of the Kirby Lumber Company, as defined by the Workmen’s Compensation Act of this state, as above quoted. Wallace v. Cotton Oil Co., 91 Tex. 21, 40 S. W. 399; Cunningham v. Moore et al., 55 Tex. 377, 40 Am. Rep. 812; Cunningham v. Ry. Co., 51 Tex. 510, 32 Am. Dec. 632; Honnold on Workmen’s Compensation, c. 4, §§ 49, 51, 58, and 6.6; Yemon’s Sayles’ ‘Civil Statutes 1914, arts. 5246h and 5246yyy.

Having reached the conclusion that Sanford McGilberry was not an employé of the Kirby Lumber Company at the time of his death, within the provisions of the Workmen’s Compensation Act of this state, it follows that we must hold that'the finding by the jury that said McGilberry was guilty of negligence which proximately contributed to his death, which finding is not questioned by the appellees in this case, and which is abundantly supported by the evidence, entitled appellant, Kirby Lumber Company, to a judgment in its favor, and the trial court should have granted appellant’s motion therefor; and, because of the trial court’s error in refusing to do so, its judgment is reversed, and judgment will be here rendered, upon the verdict of the jury, that appellees take nothing by their suit, and that appellant recover all costs by it expended.

Reversed and rendered. 
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