*1 1fi5 Mary Brooks. did not Brooks and establish as a matter of estate of Green genuine law that there is no alleged that Lewis Cornelius issue of fact It was further as to acquired the undi- one or more of the purchased and essential elements Brooks required appellants on or interest of Merrena Brooks before could vided successful- 1, 1930; ly February invoke a bill of review to set aside the about Brooks, judgment against or final on them in No. death Issaac Nathaniel Cause 1948, 8163. year about Lewis Cornelius heirs at Merrena Brooks as Brooks and Judgment is reversed and the cause re- law, in- inherited an additional undivided manded to the trial court for hearing on interest owned
terest the undivided appellants’bill of review. Issaac Nathaniel Brooks in estate of Mary Appel- Green Brooks Brooks. pleaded year also ten
lants statute
limitations. determining
In the matter of ren affirming
dering summary or party, appeal, favor of a PIONEER COMPANY, CASUALTY court, as as in the trial is not well Appellant, fact is raises sues with reference to the essential ele al., Appellees. BUSH et plaintiff’s ments of a or of ac claim cause No. 486. tion, but summary judgment whether the proof establishes as a matter of law that Appeals Court of Texas, there is no issue of fact as to Tyler. or more of the essential elements of the 25, 1970. June plaintiff’s cause action. Gibbs v. Gen Rehearing July 16, Denied Corporation, eral Motors (Tex.Sup., 1970); Young Harrington v.
Men’s Christian Association of Houston County, Harris (Tex.
Sup., 1970); 166-A(c), Rule Texas Rules
of Civil Procedure. moving judgment, defendant-appellee assumed the burden showing as plain a matter of law that
tiffs-appellants had no cause of action Smith, him. Gaddis v. (Tex.Sup., 1967).
For appellee to discharge this
burden, required he was that as a to show
matter (1) of law appellants had no action,
meritorious cause they (2) prevented fraud, making by
accident wrongful opposite act of the
party (3) negli unmixed with fault
gence West, of their Gracey own. su
pra. After examination of the entire us,
record before it opinion is our that the *2 Phenix, Henderson, N. for appel-
James lant. Price,
Fairchild, Center, Hunt ap- & Fairchild, pellees; Center, Robert of coun- sel.
Ig7 liability, Glynn MOORE, When Pioneer denied Elton Justice. Bush, friend, present through filed next summary judg- appeal from This is an company. suit Sub- plain- favor ment entered below sequently he filed a motion for tiff, Bush, an au- suit on hearing, judg- After a *3 arose liability policy. The suit tomobile appellee, ment was entered in favor of Casualty Com- appellant’s of Pioneer out Bush, Glynn Elton and the insurance com- $10,000 for pany, pay judgment to a refusal perfected pany appeal. of in El- previous in a case favor entered Appellant’s Coye main Bush, against brother contention Glynn his below and ton here is Coye re- that both Elton and DeWayne personal injuries Bush for were employees insured, of named Coye of a truck accident. the D. the result ceived as Bush, their recovery and therefore a Bush, Coye the Appellant had sold to D. by appellee prohibited was under the fol- DeWayne, Coye of Elton father lowing exclusionary policy: clause the insuring 1968 Chev- policy an automobile a “ * * * used, along dump rolet The truck insurance with re- spect truck, any to dump person in his organization a or with 1963 Chevrolet other sand, than hauling gravel. the dirt and named of spouse insured such business does policy any person driving apply: the not The covered named in- with the the truck consent of
sured. (2) to employee respect to injury sickness, to or 19, 1968, August of morning
On the Mr. disease death of another Bush instructed his two to take the the sons of same em- ployer injured in trucks his to be the of to service station fueled course such Elton, preparatory day’s to arising the then in an accident out work. old, truck, years out in of the started the 1963 maintenance or the use of auto- in the brother employer.” followed truck mobile in the of such business Coye, years was at the time old. who policy any provision did not contain way, along the Elton’s truck Somewhere liability excluding injury for inflicted stalled; pulled he the side of it the an- member household the replace it road and climbed under other member of the household. reason, wire the For some a starter. Coye running stop enough, failed soon summary judgment, ap- In his motion for truck, pushing into the rear the stalled pellee position takes the the con- its rear his brother and then wheels over clusively shows both he and his brother running over him with the front wheels unemancipated were minors at time the of the 1968 truck. Elton suffered ex- the accident. he Therefore contends that head, tensive injuries. neck and chest binding neither of them could enter a into contract with their so father as to create by Elton, Suit was brought through his an employer-employee relationship. Hence friend, uncle against Coye as next for argues he that since there was no em- damages resulting injury. from the That ployer-employee relationship, he was not suit resulted in judgment in favor of subject to the exclusionary clause $10,000. for the sum Demand was policy and that summary judgment must made appellant to pay on the sustained. company The insurance basis that re- was an insured under policy, thereby making sisted Pioneer the motion Casualty Company by pleading liable for the appellee that both and his had either or both sons of the insured employees subject
brother were policy. The exclusionary in the clause emancipated or had would deposition testi- company offered the also case, disposition as control Bush, Elton, Coye, which mony of Mr. appellee contends. to raise an it was sufficient contends question of whether record, of fact controlling As we view the em- appellee or not and his brother were issue is or not both minor sons ployees of their father. Therefore so, employees their father. If trial company contends that provisions subject to the would be judg- granting erred in court exclusionary policy. clause of the ment. construing provisions pub- similar policies, liability lic the courts have held authorities,
After review the *4 in that order for foregoing the exclusion- ap- we find that in we are not accord with ary clause to applicable, become both the pellee’s proposition that a minor cannot injured party and the must be tortfeasor contract with ex the With the father. employees injury of the insured and the ception contract, type of a limited the of must scope have occurred in course and the of disability contract a minor whose has employment. p. 458, of Am.Jur.2d, 7 sec. judicially removed is not void 133 the in 8 *5 principal insured.” by the law, or that no genuine issue of fact ex isted thereon. We are inclined to believe relation employer-employee An that the evidence was sufficient raise an to contract, express ship must be founded for issue the trier of the fact. Publi Carter implied, oral or written. Davis, (Tex.Civ. 640 cations v. respect relationship With to Elton’s with Younger Waco, 1934, ref.); App., writ the evidence is somewhat more Moore, (Tex.Civ. 135 780 Bros. v. S.W.2d vague and At indefinite. the time of dism., Paso, 1940, judg. cor.); App., El err. accident, only working he had been for Company v. Mercury Life and Health week, his father for having worked Leon, (Tex.Civ.App., De employer for ref., another all v. summer. While Eastland, Parks e.); n. r. Kelley, Am (Tex.Civ.App., both Elton and his father testified that arillo, 1939, Co. Slaughter Cattle h.); n. w. they agreement respect had made no Pastrana, (Tex.Civ.App., 217 S.W. to his employment, the father testified 1920, dism., Paso, right j.). El w. o. pay that he had Elton at the intended to employer employee to control week, rate of per had not told but $60.00 contract, this from flows from dispute him It that Elton so. is without right law control common to supervision worked under the and control reply his minor its children. to show, of his father. The evidence does appel judgment, motion for however, regularly that he did not work tending that lant offered evidence to show permitted that to the truck he was take employees of both Elton and high engaged to the school where he pre their appellee father and hence was football on practice various occasions recovery cluded from a under the exclu Thus, sionary policy. clause in the The effect returned to work thereafter. wheth- merely family er Elton was this was to cast the burden occasional employee upon prove, a volunteer or whether was an as matter he sense, law, in legal Up- em a no that neither of the sons were means clear. record, ployees have at the the accident or review of the entire we time that prove at least that no concluded is at least some evi- issue there dence, respect light fact when viewed in a most favor- existed with thereto. disputed fact appellant, able to raise COMMISSION, TEXAS EMPLOYMENT Appellant, If of his father. was an true,
this it follows that improvidently granted. For Kitchens, Sara A. Pac BUSBY Farm stated, must be the reasons Inc., Appellees. for trial cause reversed and the remanded No. 8011. on its merits. Appeals Texas, Court of
Reversed and remanded. Amarillo. July 20, ON MOTION FOR REHEARING Rehearing 17, 1970. Aug. Denied urges since it Appellee that attorney in appellant’s was admitted argument
oral before this Court
neither he nor his brother had emanci been were, law,
pated, they as a matter
precluded suing obtaining judg
ment their father. Based
premise, they appellee argues that since recovery
were barred from a their
services, in no contract came result, existence and as he nor neither
his younger brother could have em
ployees Consequently, of their father. he
continues exclusionary to insist
clause in policy does apply to him. it,
As we the argument proceeds view premise the false that an unemanci-
pated minor legal capacity without employment
enter into an contract with a
parent. is nothing prevent There
father and his son entering into employment. contract of C.J.S., Child, 38;
Parent and C.J.S., Work § 17; Labor, Bolman v. Kark Render § Plant,
ing (Missouri Su
preme Court, 1967). Whether uneman-
cipated minor can sue and judg obtain
ment against a parent for his services depend,
would among things, other up
whether or not the set unemanci- event,
pation as a defense. insured’s not the whether or judg eventually
minor sons could recover in deter controlling
ment would
mining the ultimate
not a contract existed. for rehearing motion is overruled. and cases cited notes and only but at voidable the minor’s instance. Brown v. Farmers’ & Nat. Merchants’ Cleburne, 265, Bank of 88 31 Tex. S.W. appeal this is an Since from an (1895); 285 Building Prudential Loan & sustaining order a motion for Shaw, 228, Ass’n v. 119 26 Tex. S.W.2d 166-A, judgment pursuant to Rule Vernon’s 168, 27 (1930); S.W.2d 157 Sims v. Uni Procedure, Texas Rules of Civil the sole versity League, Interscholastic 111 S.W.2d question genuine of ma is whether a issue Beaumont, 1937, 814 (Tex.Civ.App., dismiss pleadings, is presented terial fact moot, ed as 131 94); S.W.2d Ruther presented and affidavits other documents ford Hughes, v. (Tex.Civ. trial of demon to the court. The burden App., Amarillo, 1950, h.). n. w. Emanci strating any as to genuine that no pation, express either implied, constitutes party upon the material fact exists rests only agreement an to relin filing the motion for quish parental his rights to control determining question In of minor and to the minor’s services and presented, issue material fact earnings. Furrh McKnight, v. 6 Tex.Civ. light in a most we must view the record 583, App. 26 95 (1894, h.); S.W. n. w. opposing party the motion favorable Weimhold Hyde, 294 (Tex. v. 899 S.W. which accept as true evidence and Amarillo, Civ.App., 1927, h.); n. w. Dur 166-A, support position. tends to its Rule Co., ham v. I. C. T. Insurance 283 S.W.2d Procedure; Vernon’s Texas Rules 413 (Tex.Civ.App., Dallas, 1955, dism.). writ 412, Penn, 151 252 v. Tex. Gulbenkian It has also been held that unemancipated an 929; In American Reserve S.W.2d Great minor may enter into a valid contract of Plumbing Company surance v. San Antonio stranger with a and the father Tex., 41, 47; Supply Company, 391 S.W.2d can make contract with his minor Manney Company Reserve Life & v. Texas stranger son that a could Chauncey make. 345, Company, (Tex. Insurance 407 S.W.2d Gambill, v. 126 (Tex.Civ.App., S.W.2d 775 1966, Dallas, Civ.App., h.); n. w. White Worth, 1939, dism., Thus, Ft. judg. cor.). Company, Lakewood Bank and Trust if an unemancipated minor can contract 129, Dallas, 438 (Tex.Civ.App., parent, 1969, h.). n. w. j.69 Coye testimony deposition gen The apply, the recognize, and here We living years age, he was 14 applied to shows that to be of construction eral rules attending parents in of his in Trin the home as outlined contracts of Tubbs, during the summer months. Company except school ity Insurance Universal Amarillo, testimony, as well as that According to his (Tex.Civ.App., 342 S.W.2d ref., express therein. of his oral contract 1960, cited e.) r. and cases n. before us does under the terms of entered into insurance contract hauling “em in paid the term he was to be for his work definition contain a per particular gravel dirt regard at the rate ployee”. $60.00 With T.I.M.E., Court, Coye that term, week. evidence shows Supreme Texas While the week, Casualty Company, actually paid per was never Maryland $60.00 Inc. v. that Coye constru both and his father testified (1957), Tex. at recognized to the one injury, similar after Elton’s the father ing policy provision Coye bar, debt and in satisfaction thereof has stated: transferred to him an There automobile. “ * * * any such absence dispute seems to be no that he worked un ‘employee’ limiting language the word supervision der and control of his given will paragraph (a) be as used circumstances, father. Under we meaning and will ordinary its usual say have concluded we cannot employed who is refer held to was not an as a matter