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Askew v. Mathews
September 26, 1991
Unpublished Opinion

Askew v. Mathews

Court of Appeals of Texas, Houston (1st Dist.).

Travis and Nola ASKEW, individually, and d/b/a T&T Production Company, Appellants,


Gertrude MATHEWS, individually, as administratrix of the estate of Ernest L. Mathews, deceased, and as next friend of Keri Lynn Mathews, a minor; Deborah Ann Bales; Christine Ellard; and Darrell E. McNeil, Appellees.

No. 01-90-00488-CV.


Sept. 26, 1991.

On Appeal from the 335th District Court Burleson County, Texas Trial Court Cause No. 19,297.

Before O’CONNOR, JJ.


MIRABAL, Justice.

*1 This is an appeal from a judgment, based on a jury verdict, in a wrongful death and survival suit arising from a head-on collision between the vehicles of Darrell E. McNeil (McNeil) and the decedent, Ernest L. Mathews (Mathews). The jury found the appellants, Travis and Nola Askew d/b/a T&T Production, (”T&T”), vicariously liable for the negligence of their employee, McNeil. We reverse and render in part, and affirm in part.

The following facts are undisputed:

On August 26, 1986, around 7:10 a.m., McNeil and Mathews collided head-on in their pick-up trucks, on Farm to Market Road 1362, in Burleson County. McNeil worked on gas and oil wells as a production supervisor, and was on his way to check on wells belonging to T&T, at the time the collision occurred. Appellee, Gertrude Mathews, the decedent’s wife, filed wrongful death and survival actions against McNeil on January 6, 1987. She later joined T&T, alleging they were vicariously liable as McNeil’s employers.

T&T filed a plea in abatement based on a chapter 11 bankruptcy court order dated April 14, 1986, which stayed the litigation. An agreed motion to modify the stay was filed in the bankruptcy court. The bankruptcy judge issued an order on August 26, 1988, lifting the stay to permit discovery and prosecution of this claim. The order states that once the claim is liquidated, any recovery is to “be limited to applicable insurance proceeds.” T&T then filed a cross-action against McNeil, in the state court action.

The case was tried to a jury and, at the close of the plaintiffs’ case, T&T requested an instructed verdict. T&T also requested an instructed verdict at the close of all the evidence, and objected to jury questions asking about the relationship between the defendants, the course and scope of McNeil’s employment, and whether McNeil was on a “special mission.” T&T’s contentions from the beginning of the proceedings were: (1) McNeil was not their employee, but an independent contractor or “consultant,” as a matter of law; (2) if McNeil was an employee, he was not acting within the course and scope of his employment when the accident occurred, as a matter of law, due to the “coming and going” rule; and (3) McNeil was not on a “special mission in furtherance of his employer’s business,” as a matter of law, at the time of the accident. All of T&T’s requests and objections on these issues were denied or overruled.

The jury found: (1) McNeil was an employee of T&T, not an independent contractor; (2) he was acting within the course and scope of his employment at the time of the accident; and (3) he was on a “special mission” at the time of the accident. T&T filed motions for judgment n.o.v., new trial, and to modify, reform or correct the judgment, which were also denied by the trial court.

In point of error three, T&T contends the trial court erred in not granting T&T’s motion for judgment n.o.v. and motion for new trial because there was no evidence or factually insufficient evidence to support the jury’s finding that McNeil was an employee of T&T.

*2 In order for a trial court to disregard a jury’s findings and grant a motion for judgment n.o.v., it must determine that there is no evidence upon which the jury could have relied for its findings. Navarette, 706 S.W.2d at 309.

The standard of review for denial of a motion for new trial is abuse of discretion by the trial court, and its actions will not be disturbed on appeal absent such a showing. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986).

Jury question number three reads as follows:

Q: On the occasion in question was Darrell E. McNeil acting as an employee of T and T Production Co.?

An “employee” is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.

A person is not acting as an employee if he is acting as an independent contractor. An “independent contractor” is a person who, in pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such other person with respect to the details of the work, and who represents the will of such other person only as to the result of his work and not as to the means by which it is accomplished.

Answer “Yes” or “No.”

The jury answered “yes,” McNeil was acting as the employee of T&T at the time of the accident, and not as an independent contractor.

*3 As the jury was instructed, whether McNeil was an employee or an independent contractor depends on whether T&T had the right to control or direct the work to be done by McNeil. Shaw v. Greater Houston Transp. Co., 791 S.W.2d 204, 211 (Tex. App.-- Corpus Christi 1990, no writ). Generally, the courts consider five evidentiary factors in analyzing one party’s right to control the details of another’s work:

(1) the independent nature of the worker’s business;

(2) a party’s obligation to furnish the necessary tools, supplies, and material to perform the job;

(3) the right to control progress of the work, other than the final result;

(4) the length of time of the employment; and

(5) the method of payment--whether by the job or by time.

Sherard v. Smith, 778 S.W.2d 546, 548 (Tex. App.--Corpus Christi 1989, writ denied).

In the present case, the jury heard extensive conflicting evidence on the relationship between McNeil and T&T. The following is a summary of only the evidence and inferences that support the jury’s finding that McNeil was an employee of T&T.

In March 1986, T&T employed McNeil, an oil and gas production supervisor, as production superintendent for certain wells in and around Burleson County, Texas, in which T&T was a producer or had some interest. Immediately prior to that time, McNeil had been employed by a firm known as T&M Energy Company, a firm which had done work for T&T. McNeil had been talking with Travis Askew since the latter part of 1985, about the possibility of McNeil’s leaving T&M Energy and working for T&T on a full-time basis; these discussions were always initiated by Askew. T&T paid McNeil a salary of $5,000 per month, plus an allowance of $1,000 per month for gas and mileage, on the use of his truck. McNeil used his truck to carry needed tools and equipment with him to the various well sites under his charge.

The day-to-day routine of McNeil’s work involved meeting with Pee Wee Boline, a pumper employed by T&T, to discuss the status of the wells. McNeil would proceed to each of T&T’s eight or nine wells in the Burleson County area to gauge the production, check the maintenance and repair of the wells, and to review pertinent well records. After completing this inspection, McNeil and Boline would call T&T’s main office in Victoria, Texas, and speak with Askew. McNeil would report by telephone to Askew, or to Askew’s assistant in Victoria, about the daily production of the wells, how such production might be enhanced, whether a particular well needed repair or maintenance, and so forth. McNeil would follow the instructions and directions received from the Victoria office. There was no doubt in McNeil’s mind, at the time he was hired or thereafter, that Askew had the absolute right to tell him exactly what to do in carrying out his job. Further, had McNeil refused to do what he was told in carrying out his job, he would have been unemployed. McNeil testified, “[t]here was not a thing done that he [Askew] wasn’t in control of.” When McNeil went to work for T&T, there was no doubt in McNeil’s mind that he was T&T’s employee.

*4 Askew testifed he retained and exercised his right to control the details of McNeil’s work, not merely the end product. Askew said he treated and considered McNeil as any other employee; if McNeil had not done as Askew instructed, McNeil would be fired, as would any other employee.

We hold there was more than a scintilla of evidence to support the jury finding that McNeil was an employee of T&T. Therefore, the trial court did not err in its refusal to disregard that jury finding and enter a judgment n.o.v.

We next review the remainder of the relevant evidence to determine whether the jury finding of an employer-employee relationship was so against the great weight and preponderance of the evidence that it was clearly wrong and unjust.

On cross-examination, McNeil testified that no one told him that his job was 8:00 a.m. to 5:00 p.m., Monday through Friday. He had no scheduled hours, and on certain days he did not even show up. McNeil’s fee was not based on a 40-hour week, or on any hourly requirement. He did not have to itemize expenses. McNeil said, if he was visiting a well, he could go to another well when he wanted to; no one said he only had so many minutes to look at one well until he went on to another.

Askew testified he did not have any control over what time of the day or night McNeil would go to any of the wells, and that McNeil did not have any scheduled hours. In fact, Askew did not care, so long as McNeil did the work.

At the time of the accident, McNeil was driving his own vehicle, on a public road, and was on his way to check some T&T production wells. T&T had provided McNeil with a route instruction sheet indicating directions to each well site; he was following that route on that morning. McNeil left his home in Smithville about 5:30 a.m., and stopped at a cafe in Caldwell for a cup of coffee. McNeil said that, when he was at the cafe, he was not conducting any business for T&T, he was not meeting with any T&T employees, and he did not have any conversation with Askew. McNeil also said that, after he left the cafe and was on his way to the wells, the only thing that had changed was that he had gotten a cup of coffee; he had done nothing to benefit T&T that morning -- he was simply on his way to look at a well. If he had reached the well, then he would have performed his job and would have given some benefit to T&T.

McNeil said, on the day of the accident, no one told him which well to check that day, or that he needed to drive a particular way to get there. He had not even spoken to Askew that morning. He was not transporting any T&T employees at the time of the accident.

Prior to the time the Askews engaged McNeil’s services on behalf of T&T, McNeil was employed by various independent oil and gas consulting firms. During the time McNeil worked as a consultant, it was his job, if he was in charge of production, to go to the wells, look at the records, and consult with the people on the job to advise them how to maintain a certain level of production or possibly improve it. As a consultant, he may have given advice to the owner or the person in charge, who may or may not have accepted his advice. It was McNeil’s job, in those instances, to tell the owner what he thought they should do, such as “hot oil” or “frack” the well, or to recommend service companies.

*5 When McNeil started working solely for T&T, he undertook a specific responsibility as the production superintendent for T&T: to gauge production on the wells. “Gauging a well” means making sure that it is producing, and measuring the amount it has produced over a given period. In order to determine production, it is necessary to check the well itself. McNeil testified that he would meet the pumper in the morning to see what needed to be done to “keep the well in production.” Then, he would pass on to Askew what the production was and how it could be enhanced. A decision would be made on what needed to be done. Askew testified that McNeil would identify problems, contact Askew with options to solve the problems, and Askew would make a decision.

On cross-examination, McNeil said he used his own means and methods in gauging. Askew testified that when McNeil started working for him, McNeil used his own means and methods. Askew was only interested in the results -- whether production was up or down. Askew left the details of the work up to McNeil.

McNeil was compensated for his services in the amount of $5,000 per month, plus $1,000 per month for expenses, which he invoiced to T&T every two weeks. The $1,000 expense payment covered meals, phone, motel, and insurance and expenses for McNeil’s truck. McNeil did not have to produce any vouchers, invoices, or any accounting for the $1,000 expense payment.

Long before McNeil knew the Askews, he printed up invoices to bill for his consulting services; he used these forms to invoice T&T. The top of the invoice contained the following preprinted name, address and telephone number:

McNeil & Associates

(512) 237-3970

307 Bishop

Smithville, Texas 78957

T&T’s Employer’s Quarterly Report did not list McNeil as an employee for whom social security withholding was paid, and the company’s Statement of Receipts and Disbursements shows that only “consulting fees” were paid to McNeil. Askew did not obtain workers’ compensation, health, or liability insurance for McNeil. On his 1986 income tax return, McNeil was identified as an oil field consultant and reported a profit “from business or profession (sole proprietorship).”

With regard to the manner in which McNeil was paid, the evidence showed that, in March of 1986, T&T’s creditors brought T&T into an involuntary proceeding under chapter 11 of the United States Bankruptcy Code. On April 14, 1986, the cause was converted to a voluntary chapter 11 bankruptcy proceeding. A creditor’s committee was formed to oversee the operations of T&T as a debtor-in-possession. This committee wanted T&T to limit the number of employees on the payroll, and, in fact, forbade T&T to hire any new employees. Askew testified it was therefore to T&T’s advantage to classify McNeil as something other than an “employee.” T&T’s accountant also testified there was a financial benefit to T&T in avoiding the social security and income tax withholding, health insurance payments (including major medical coverage at a cost of approximately $100 per month, per employee), and worker’s compensation premiums otherwise attributable to McNeil. Askew testified T&T enjoyed a substantial savings by hiring McNeil to work in-house for a total compensation of $6,000 per month (including expenses), as opposed to paying T&M Energy Company, McNeil’s former employer, anywhere from $18,000 to $25,000 per month for the services of McNeil.

*6 Once it is shown there is some evidence of probative force to support an issue, the question is for the jury to decide; and where the evidence on the issue is conflicting, the determination of the facts is for the jury. Esteve Cotton Company v. Hancock, 539 S.W.2d 145, 157 (Tex. Civ. App.--Amarillo 1976, writ ref’d n.r.e.).

We hold the jury’s finding of an employer-employee relationship, considering the conflicting evidence, was not so against the great weight and preponderance of the evidence that it was clearly wrong and unjust.

We overrule point of error three.

In points of error one and two, T&T contends the trial court erred in not granting T&T’s motion for judgment n.o.v. and motion for new trial because there was no evidence or factually insufficient evidence to support the jury’s findings that McNeil was acting within the course and scope of his employment at the time of the accident, or that he was on a special mission in furtherance of T&T’s business at the time of the accident.

The fourth question submitted to the jury was:

Q: On the occasion in question was Darrell E. McNeil acting in the scope of his employment?

An “employee” is acting in the scope of his employment if he is acting in the furtherance of the business of his employer.

A: Yes.

The fifth question submitted to the jury was:

Q: On the occasion in question was Darrell E. McNeil operating the vehicle in furtherance of a mission for the benefit of T and T Production Co. and subject to control by T and T Production Co. as to the details of the mission?

A: Yes.

In order to hold an employer vicariously liable for the acts of his employee, the act must be committed:

1. within the scope of the general authority of the employee;

2. in furtherance of the employer’s business;

3. and for the accomplishment of the object for which the servant was employed.

*7 Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 358 (Tex. 1971).

The test of a master’s liability for the negligent acts of his servant is whether, on the occasion in question, the master has the right and power to direct and control the servant in performance of the causal act or omission at the very instance of its occurrence. Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907 (Tex. App.--Corpus Christi 1988, no writ).

T&T contends the “coming and going” rule precludes any vicarious liability on its part. For purposes of respondeat superior liability of an employer, the general rule is that an employee is not within the course and scope of his employment if he is traveling to or from work, absent other factors. Rose v. Odiorne, 795 S.W.2d 210, 213 (Tex. App.--Austin 1990, no writ). However, the “other factors” create exceptions to the general rule.

One factor is that when transportation is furnished or paid for by the employer, it raises a rebuttable presumption that the employee was in the course and scope of employment at the time of the accident. Longoria v. Texaco, Inc., 649 S.W.2d 332, 335 (Tex. App.--Corpus Christi 1983, no writ). The testimony from McNeil, the accountant for T&T, as well as Askew, was that McNeil was paid $1000 a month in “expenses,” to cover his “mileage, insurance, gas, etc.”

Another factor is whether the employer requires a particular means of travel or directs the employee to take a particular route; if so, the employee is engaged in furtherance of the employer’s business. Texas Employers’ Ins. Ass’n v. Byrd, 540 S.W.2d 460, 462-63 (Tex. Civ. App.--Amarillo 1976, writ ref’d n.r.e.).

*8 McNeil and Askew both testified there was no other way for McNeil to get to the wells or do his job, other than to travel the road where the accident occurred. Both testified part of his McNeil’s job was to go out and gauge the wells. McNeil testified there was no personal reason for him to turn down Farm to Market Road 1362; Travis Askew testified he knew of no reason for McNeil to be on that road other than to go to the wells. McNeil placed in evidence the map with route instructions Askew had given him.

T&T correctly states that McNeil’s statement that he was in the course and scope of his employment and furthering T&T’s business is not probative evidence on that issue. However, there is testimony from Askew, the map, and the instruction sheet which support the jury findings. The jury is allowed to make reasonable inferences from the evidence presented to it. Hancock, 539 S.W.2d at 157.

We hold the evidence was legally and factually sufficient to support the jury answers to questions four and five.

We overrule points of error one and two.

In the fourth point of error, T&T contends the trial court erred in denying the motion to modify, reform or correct the judgment because the judgment does not reflect T&T’s liability as limited to “applicable insurance proceeds.” Appellees contend the judgment entered by the trial court does not violate, alter, or modify the order entered by the bankruptcy court.1

The order modifying the automatic stay in the bankruptcy court was entered into by agreement. It limited any recovery in this case to the applicable insurance proceeds; the bankruptcy court was informed that the insurance coverage amounted to an aggregate of $300,000. A certified copy of the bankruptcy court order was admitted without objection at trial.

The judgment rendered by the trial court states that the Askews d/b/a T&T Production Co. are jointly and severally liable to the plaintiffs for the amount of $313,105.40. A subsequent judgment was signed, allowing another $72,020.36 for prejudgment interest, bringing the total amount of the judgment to $385,125.76. The judgment also states that “all writs and processes for the enforcement and collection of this judgment or costs of court may issue as necessary.”

After the trial court’s judgment was entered, T&T filed a motion to modify, reform, or correct the judgment, urging that the judgment was in error because it did not reflect the bankruptcy court’s order. The trial court denied the motion.

Bankruptcy Code 11 U.S.C. sec. 362 (Supp. II 1978) automatically stays all judicial proceedings “against the debtor.” An action taken in violation of the automatic bankruptcy stay is void, not merely voidable. Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 114 (5th Cir. 1987). The terms of an order modifying the automatic stay must be strictly construed. Id.

The order of the bankruptcy court modified the stay in a very limited way: the trial court could only liquidate the claim. The determination of dischargeablity of the amount of the judgment above and beyond the “applicable insurance proceeds” is a matter for the bankruptcy court to determine. The trial court would have exceeded the bounds of its jurisdiction had it done anything more. We hold the refusal to include the language requested by T&T was not error.

We overrule T&T’s point of error four.

In its final point of error, T&T contends the trial court erred in denying the motion to modify, reform or correct the judgment to provide for indemnity against McNeil in the judgment.

T&T brought a cross-action against McNeil, seeking indemnity and alleging negligence per se. At trial, T&T nonsuited the part of their cross-claim alleging negligence per se. The jury found that McNeil was the proximate cause of the accident, was an employee of T&T, acting in the course and scope of his employment, furthering the business of T&T at the time of the accident, and that the deceased was not negligent. The trial court’s judgment made no mention of T&T’s cross-claim for indemnity against McNeil, but stated that all other relief not expressly granted was denied.

The common-law right to indemnity exists in Texas only in the case of purely vicarious liability. Humana Hosp. Corp., 785 S.W.2d at 145.

We hold the trial court erred in denying the requested cross-claim relief. We therefore sustain point of error five.

The judgment of the trial court, as it relates to the cross-claim of the Askews d/b/a T&T, against McNeil, is reversed and judgment is rendered that the Askews d/b/a T&T have and ecover complete indemnity from McNeil. In all other respects, we affirm the judgment.

Do not publish. TEX. R. APP. P. 90.



Appellees also contend that T&T’s insurance company and their surety, by posting a supersedeas bond for the full amount of the judgment and postjudgment interest, have waived any error in the trial court’s refusal to include the requested language. However, appellees cite no authority for this position, and none could be found.

End of Document