Lumbermen's Reciprocal Ass'n v. Wells , 297 S.W. 884 ( 1927 )

(after stating the facts as above). The contentions presented in appellant's brief are: (1) That it conclusively appeared from the evidence that appellee's relationship to the work he was doing was that of an "independent contractor"; (2) that, if it did not so appear that such was his relationship to the work, it did conclusively appear that he was not an "employee" of the basket factory within the meaning of the Workmen's Compensation Law; (3) that, if it did not conclusively appear that appellee was an independent contractor and not an employee of the basket factory, the evidence presented an issue as to whether he was the one or the other which should have been submitted to the jury.

Appellant cites Shannon v. Western Indemnity Company (Tex.Com.App.) 257 S.W. 522, as authority supporting its contention that it appeared appellee was an independent contractor. But we think the material facts of that case are like the facts of this one only, in that there Shannon owned the tools with which he did the work, as appellee did the tools he used in repairing the boilers. It appeared without dispute in the testimony in this case that, while appellee was not instructed how to do the work, he was fully instructed as to the particular repairs he was to make and was furnished the help and material he needed in making same. Moreover, Sherrod, the basket factory's superintendent, testified, and his testimony was not contradicted, that he supervised the work appellee did.

The second one of the three contentions stated is based on the definition of the word "employee" in the law referred to. That definition (article 8309, R.S. 1925) does not include "one whose employment is not in the usual course of trade, business, profession or occupation of his employer." It is insisted that the testimony did not show that appellee's employment was in the usual course of the basket factory's business, but showed to the contrary. Oilmen's Reciprocal Ass'n v. Gilliland (Tex.Com.App.) 291 S.W. 197, is cited as supporting the contention. In that case it appeared that the employer company was engaged in operating a laundry with an inadequate water supply, and had sunk additional wells, necessitating the installation of a more powerful pumping equipment. For that purpose it had dug a pit near the new wells, which Gilliland and other bricklayers were engaged, when injured, in lining with brick to prevent the walls thereof from caving in. The Commission of Appeals held that walling up the pit was not in the usual course of the laundry company's business, and therefore that Gilliland was not an employee of that company within the meaning of the Workmen's Compensation Law.

A difference between that case and this one lies in the fact that in that one Gilliland was employed to assist in the construction of an addition to the laundry company's plant, while in this one appellee was employed to repair parts of the basket factory's plant which were indispensable to its operation. Certainly keeping machinery it uses in repair is within the "usual course of business" of a manufacturing concern. It could not very well carry on its business without doing that. In many instances repairs necessary are simple and can be and are made by operatives of machines used. It would be unreasonable, it seems to us, to say that such an operative while engaged in repairing a machine he was using ceased to be employed in the "usual course" of his employer's business. And yet we see no reason why that should not be said if it is true that repairing machinery of a manufacturing plant is not in the "usual course" of business of such a concern.

It follows from the conclusion reached that the two contentions first stated should be overruled that we think there is no merit in the third one.

The judgment is affirmed.