5 S.W.2d 494 | Tex. Comm'n App. | 1928
The case is thus stated by Justice Blair of the Court of Civil Appeals (2 S. W.[2d] 495):
“Appellee sued in the manner provided by statute to set aside an award of the Industrial Accident Board in favor of appellant for loss of an eye, which, he alleged, resulted from an injury sustained while in the employ of H. E. Wattinger, who was under contract to construct three buildings, in connection with the State Feeble-Minded Colony, at Austin, and insured at the time by appellee, under provision of the-Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq.). Appellee resisted the claim and pleaded that Wattinger sublet the particular work at which appellant was engaged when injured to one J. R. Morris, an independent contractor, who employed appellant, and therefore-he was not covered by the policy issued by ap-pellee to Wattinger. Appellant replied that, if' Wattinger sublet the work, which he denied, he still retained control of it, and that Morris and all his employees were under orders and control of Wattinger in doing the actual work of construction, and further pleaded that the contract between Wattinger and Morris was made in fraud of his .right to compensation.
“The jury was asked to find, first, if Morris was an independent contractor; and, second, if’ the contract between Wattinger and Morris was executed in fraud of appellant’s right to-compensation. The jury answered the first issue in the affirmative, and the second in the-negative, and upon these answers the court rendered judgment for appellee.”
The Court of Civil Appeals reversed the-judgment and remanded the cause for another trial upon the grounds that the trial1 court erred in placing the burden upon the-defendant, W. A. Chancellor, to show by a preponderance of the evidence that Morris-was not an independent contractor, and that the explanation accompanying the charge, defining the effect of the contract between Wattinger and Morris with respect to the issue of independent contractor, was erroneous. 2 S.W.(2d) 495.
We are of the opinion the judgment of the-trial court should have been affirmed by the. Court of Civil Appeals for the following reasons:
Under the Workmen’s Compensation Act it was indispensable that defendant in error prove that he was an employee of Wat-tinger, the original contractor with the board
We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the trial court he affirmed.