Fagin v. North Dallas Moving & Storage Co.

503 S.W.2d 308, 1973 Tex. App. LEXIS 2916
CourtCourt of Appeals of Texas
DecidedNovember 29, 1973
DocketNo. 5292
StatusPublished
Cited by1 cases

This text of 503 S.W.2d 308 (Fagin v. North Dallas Moving & Storage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fagin v. North Dallas Moving & Storage Co., 503 S.W.2d 308, 1973 Tex. App. LEXIS 2916 (Tex. Ct. App. 1973).

Opinion

OPINION

JAMES, Justice.

This is a case wherein the trial court granted a summary judgment for the Defendants. We reverse and remand.

Plaintiff-Appellant Harvey L. Fagin brought this suit against Defendant-Appel-lees North Dallas Moving and Storage Company, Inc., and James E. Morris, under the Workmen’s Compensation Law. In his pleadings and affidavit, Fagin alleged in effect that while working in the course and scope of his employment with North Dallas, on or about April 1, 1971, he sustained severe and crippling bodily injuries, for which he sued for total and permanent disability.

North Dallas is alleged to be a common carrier which was in the business of transporting goods for hire from one place to another in the State of Texas. Defendant-Appellee James E. Morris was at all times material to this suit the president and principal stockholder of North Dallas, and is alleged to be the alter ego of North Dallas.

In November 1970, Fagin was employed by North Dallas to help load vans, drive tractor-trailer trucks from Dallas, Texas, to various cities and towns in Texas on the public highways, and to help with unloading and unpacking.

[310]*310Fagin was in the process of moving a medical doctor from Dallas to Corpus Christi, Texas, on April 1, 1971, when it became necessary for him to lay over in Corpus Christi. On the evening of said date, Fagin was checking the tires and lights and locking up the truck, when he was hit by some unknown assailant and knocked unconscious. He alleged he suffered a broken nose, a broken cheek bone, and severe personal injuries. He alleged that he incurred substantial doctor and hospital bills, and suffered total and permanent disability.

The Defendants North Dallas and Morris moved for a summary judgment in their favor, supported by two affidavits of Defendant-Appellee James E. Morris.

The affidavits assert that Morris is president and principal stockholder of North Dallas, and the following are pertinent excerpts therefrom:

“On or about April 13, 1970, North Dallas Moving and Storage Company, Inc., became a subscriber to Workmen’s Compensation Insurance in the State of Texas. That on October 19, 1970, said Workmen’s Compensation Insurance coverage was can-celled and the Texas Industrial Accident Board at Austin was duly notified in writing of such cancellation by the insurance company having issued said policy of insurance. After cancellation of the aforementioned Workmen’s Compensation Insurance coverage, North Dallas Moving and Storage Company, Inc., did not subscribe to any other Texas Workmen’s Compensation Insurance until after April 1, 1971.

“That during the latter part of November 1970, your affiant, acting in his capacity as President of North Dallas Moving & Storage Company, Inc., did employ one Harvey L. Fagin to work for North Dallas Moving & Storage Company, Inc., in the conduct of said corporation’s business. That according to the records of said corporation, said Harvey L. Fagin did receive his first pay check for his services for said corporation on or about December 5, 1970.”

Then, Morris goes on to say that on April 2, 1971, he received a telephone call from Fagin (who was calling from Corpus Christi) advising him that he, Fagin, had been the victim of an assault by an unknown person on the preceding evening; and that Morris had no previous knowledge of the assault.

After denying that North Dallas is his alter ego, Morris goes on to say:

“That at the time Harvey L. Fagin was employed by North Dallas Moving & Storage Company, Inc. in the latter part of November of 1970, nor at any time thereafter, up to and including April 1, 1971, did said corporation or your affiant hold a Texas Railroad Commission permit as a common carrier.”

Then in his supplemental affidavit, Morris further asserts:

“At the time of Plaintiff Harvey L. Fagin’s alleged accident on April 1, 1971, said Harvey L. Fagin was involved and operated a moving van between Dallas, Texas, and Corpus Christi, Texas, an intrastate movement. Said intrastate movement was being conducted under Texas Specialized Motor Carrier Permit No. 7736 owned by Towne Services Household Goods Transportation Company, Inc., of San Antonio, Texas. Defendant North Dallas Moving & Storage Company, Inc., was furnishing the equipment and driver to Towne Services Household Goods Transportation Company, Inc., at all times in question in the above numbered and entitled cause. North Dallas Moving & Storage Company, Inc., was furnishing said equipment and driver in accordance with Article 911b, Section 1 (j) of Vernon’s Annotated Texas Statutes.”

Article 911b, Section 13, V.A.T.S., requires “motor carriers” to carry workmen’s compensation insurance.

[311]*311Article 911b, Section 1(g) defines “motor carrier” as “any person, firm, corporation . . . owning, controlling, managing, operating, or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed.”

Article911b, Section l(j) reads:

“The term ‘transporting property for compensation or hire’ shall include the furnishing during the same period of time of equipment and drivers to persons, firms, . other than common carriers, contract carriers, or specialized motor carriers for use in their carrier operations

Defendant-Appellees’ contentions in support of their Motion for Summary Judgment, as we understand them are as follows:

(1.) That North Dallas was not a “motor carrier” as defined by Article 911b, Section 1(g) and as qualified by Section 1 (j), and therefore was not required by law to carry workmen’s compensation insurance for the protection of its employees.

(2.) That North Dallas had no workmen’s compensation insurance in effect covering its employees at the time Fagin was employed, and had none in effect at any time during Fagin’s employment, and had none in effect at the time he suffered the assault and personal injuries of April 1, 1971, and was not required to give him notice of discontinued coverage under Article 8306, Sec. 3c, V.A.T.S.

(3.) That since North Dallas had no workmen’s compensation coverage on Fagin at the time he suffered the injuries in question, it was necessary for Fagin to plead and prove negligence on the part of North Dallas, in order to recover damages against them, under the provisions of Article 8306, Sections 1 and 4, V.A.T.S. Moreover, Defendants say, North Dallas is not guilty of negligence toward Fagin as a matter of law.

In other words, Appellees contend North Dallas is not liable for workmen’s compensation benefits to Fagin because it was not a subscriber at the time the injuries were incurred; in which event Fagin is required to plead and prove negligence proximately causing his injuries on the part of North Dallas, and that North Dallas is not guilty of negligence as a matter of law.

Interesting as Appellees’ contentions may be in a trial on the merits, we do not reach them in the appeal now before us.

All of Defendant-Appellees’ contentions depend upon the credibility of Morris as a vitally interested witness.

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Bluebook (online)
503 S.W.2d 308, 1973 Tex. App. LEXIS 2916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fagin-v-north-dallas-moving-storage-co-texapp-1973.