Opinion
No. A-48.
Decided May 10, 1944. Rehearing overruled June 14, 1944.
Workmen's Compensation — Actions.
While an employee has the right to work for one employer during the day and another at night, if the one for whom he is working at the time of his injury is a subscriber under the workmen's compensation law, an action by the employee for personal injury must be brought under that law and not as a personal action against the employer for damages for injuries sustained while in the course of his employment, caused by the negligence of the employer.
Error to the Court of Civil Appeals for the Eighth District, in an appeal from Crane County.
Francis Bell brought this suit against the Humble Oil Refining Company to recover damages for personal injuries alleged to have been inflicted on him through the negligence of said company. The Ocean Accident Guaranty Corporation, Ltd., asked permission to intervene on the grounds that it had paid to the said Bell the sum of five thousand dollars under a workmen's compensation policy issued by it to Lee Hancock, who was an independent contractor constructing a slush pit for the defendant Humble Oil Refining Company. The said accident and guaranty company claimed that this payment was for the same injury for which Bell was suing the Humble company. The trial court rendered judgment for the plaintiff in the sum of $25,000.00, five thousand of which was in favor of the insurance company, and the balance for Bell. That judgment was reversed and judgment rendered for the defendant Humble Oil Refining Company in an opinion not published. (However, there was an opinion in this same case, involving the question of plea of privilege, in 172 S.W.2d 800.) Plaintiffs Bell and Ocean Accident Guaranty Corporation have brought error to the Supreme Court. Upon original consideration of the application it was refused for want of merit on March 29, 1944. It is now before the Court on a motion for rehearing.
Motion overruled.
Jones, Hardie, Grambling Howell, of El Paso, and John J. Watts, of Crane, and Thos. B. Greenwood, of Austin, for petitioners.
The evidence shows that Bell, at the time of his injury, was an employee of Hancock, though during the day he worked for the Humble Company, and never at any time did Hancock "loan" the employee to the Humble Company. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Southern Underwriters v. Willis, 110 S.W.2d 252; Manning v. Texas Emp. Ins. Assn., 67 S.W.2d 389. Henry Russell, of Pecos, and K.W. Gilmore, of Houston, for respondent.
Defendant company owed a duty of exercising ordinary care to guard plaintiff against the negligence of the independent contractor. J.E. Watkins Co. v. King, 83 S.W.2d 405; Thomas v. Harrington, 72 N.H. 45, 54 A. 285; Cameron Mill Elev. Co. v. Anderson, 98 Tex. 156, 81 S.W. 282.
ON MOTION FOR REHEARING.
We have heretofore refused for want of merit an application for a writ of error in the above cause. Motion for rehearing on such application is now before us.
The evidence in this case conclusively shows that the plaintiff was an employee of the defendant, Humble Oil Refining Company, and that he was working in the course of his employment as such employee at the time he was injured. The plaintiff was an employee of Hancock, the independent contractor, during the daytime, or for a part of the day, but was employed by the Humble Oil Refining Company to work as a night watchman at night in guarding some lumber and other property that the company had on the premises.
In this connection the plaintiff testified in part as follows:
"A. He (Joe Rose, a representative of the Humble Oil Refining Company) asked me if we had any certain hours to work (for Hancock), and if it would interrupt with my hours any to night-watch, and I told him that we didn't have any certain hours, because I wasn't working all the time. * * * A. I was out at the Humble location where he hired me to night-watch. * * * .A. It was after 5:00 o'clock; it was after the 5:00 o'clock whistle. * * * Q. Now, how come you to go out there as night watchman on this particular job? A. Joe Rose had me to come out there. * * * .A. Yes. It was two or three nights when he hired me that I was out there after he hired me, I know that much. * * * A. He said `Come out here and watch this rig.' Q. Is that all he said? A. `If I don't interrupt your hours working for Mr. Hancock.' * * * A. I told him that I would be out there. * * * Q. Who did you expect would pay you for it? A. I expected the Humble to do it. Q. The Humble Company? A. Yes, sir. * * * Q. And you expected the Humble to pay you for it? A. Yes, sir. * * * Q. You thought you were being employed by Mr. Rose to work for the Humble Company? A. I sure did. Q. And you expected the Humble Company to pay you? A. I sure did."
It is undisputed that the plaintiff was injured at night while working as such night watchman.
The above evidence conclusively shows, we think, that the plaintiff was working as an employee of the defendant, Humble Oil Refining Company, at the time he received his injury. He had a right to work as an employee for Hancock during the daytime and as an employee for the Humble Oil Refining Company at night if he chose to do so.
The defendant, Humble Oil Refining Company, was a subscriber under the Workmen's Compensation Law and carried workmen's compensation insurance for the protection of its employees, and consequently plaintiff's exclusive remedy against said defendant for the injury sustained in the course of his employment was under the Workmen's Compensation Law. He could not maintain an action against said defendant for damages for personal injuries sustained by him in the course of his employment caused by the ordinary negligence of such defendant. Rev. Stats. 1925, Art. 8306, Sec. 3; 45 Tex. Jur. 376.
Under these circumstances the application for writ of error presents no merit. The motion for rehearing is overruled.
Opinion delivered May 10, 1944.
Rehearing overruled June 14, 1944.