Funk Farms, Inc. v. Montoya

736 S.W.2d 799
CourtCourt of Appeals of Texas
DecidedJune 30, 1987
DocketNo. 13-86-415-CV
StatusPublished

This text of 736 S.W.2d 799 (Funk Farms, Inc. v. Montoya) 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
Funk Farms, Inc. v. Montoya, 736 S.W.2d 799 (Tex. Ct. App. 1987).

Opinion

OPINION

NYE, Chief Justice.

This is a personal injury case. Appellee Gustavo Montoya suffered a non-specific lower-back injury while attempting to lift a piece of heavy equipment. At the time of his injury, Montoya was an employee Of appellant Funk, but was not covered by worker’s compensation due to the nature of his employment. Trial was to a jury which found appellant Funk liable for appellee Montoya’s injuries. A judgment in the amount of $355,000.00 was entered for Montoya.

Montoya was employed by appellant Funk Farms, Incorporated, as a tractor driver on one of Funk’s farms in the Rio Grande Valley. At the time of his injury in 1983, Montoya was approximately forty years old, and an undocumented worker with a third-grade education. He was incapable of reading or writing English. He had been employed since the age of sixteen as a tractor driver, and this was the only work he knew and was capable of performing. Shortly after appellee Montoya began working for appellant Funk, he was injured. Montoya and other employees of Funk were plowing fields on La Javelina Farm owned by Funk, in Starr County. The individual in charge of the operation was Juan Yanez, who had been a Funk employee for twenty-three years, and the foreman for eighteen years. Yanez had taken a disc from the tractor to Funk’s main headquarters for repair. He returned later to replace the repaired part on the tractor. The weight of the piece of equipment which was being repaired was approximately eleven thousand pounds. In order to attach the disc, the tractor had to be partially lifted from the ground and certain parts inserted into it. Foreman Ya-nez instructed Montoya to take a metal pry bar and to lift the equipment so that the parts could be put in place. It was during the process of this lifting that Montoya slipped and injured his back.

The issue is whether Juan Yanez, the foreman, is a fellow servant of Montoya, for whose negligence Funk is not liable, or whether Juan Yanez is a vice-principal for whose actions defendant Funk is responsible. The question submitted to the jury was “whose negligence, if any, was a proximate cause of the occurrence in question?” The jury was instructed to check either “Yes” or “No” as to both Funk and Montoya. The jury answered “Yes” to Funk and “No” to Montoya. This would make Funk Farm responsible if the evidence supports the jury’s answers.

Appellant’s points of error one through four raise the issue of whether there was legally or factually sufficient evidence to support the jury’s finding that Juan Yanez was not a fellow servant of appellee Montoya. In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d [802]*802821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App. — Corpus Christi 1981, writ ref d n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

The jury’s instructions accompanying the first special issue stated:

A “fellow servant” is a worker who serves the same master, works under the same control, derives his authority and compensation from the same source, and engages in the same general business. One who has authority to direct and supervise his co-employees in the work being performed is, nevertheless, a fellow servant unless he also possesses the authority to employ and discharge employees under his control.

The jury obviously found that Yanez was not a fellow employee of appellee Montoya when it found in special issue No. 1 that appellant Funk’s negligence was the proximate cause of appellee Montoya’s injuries.

The general rule is that a master is not liable in a common-law action to one servant whose injury was proximately caused by the actions of a fellow servant engaged in the same enterprise. Sandefur v. Sandefur, 232 S.W.2d 111, 114 (Tex.Civ. App. — Amarillo 1950, writ ref’d). Fellow servants are those workers who serve the same master, work under the same control, derive their authority and compensation from the same common source, and engage in the same general business. H. & T.C. Railway Co. v. Rider, 62 Tex. 267, 269 (1884). In order to bind a master for a negligent act, the employee must attain the status of vice-principal. In order to constitute a vice-principal he must be clothed with the power to hire and discharge in addition to his authority to direct and command his co-employees in the work being performed. Lantry-Sharpe Contracting Co. v. McCracken, 105 Tex. 407, 150 S.W. 1156, 1158 (1912); see LeJeune v. Gulf States Utility Co., 410 S.W.2d 44, 50 (Tex. Civ.App. — Beaumont 1966, writ ref'd n.r. e.); Sartain v. Southern National Life Insurance Co., 364 S.W.2d 245, 252 (Tex. Civ.App. — Austin 1962, writ ref’d n.r.e.); McCorstin v. Mayfield, 274 S.W.2d 874, 876-77 (Tex.Civ.App. — Fort Worth 1955, writ dism’d); Waring v. Harris, 221 S.W.2d 345, 346 (Tex.Civ.App. — Austin 1949, writ ref’d).

The record contains no direct evidence as to Mr. Yanez’s authority to hire and fire. We have carefully reviewed the entire record and note that, although Mr. Yanez was the first witness and was extensively examined and cross-examined by both parties, neither side saw fit to ask whether he had the authority to hire and fire employees. While no direct evidence exists as to Mr. Yanez’ authority to hire and fire employees, such authority can be inferred from all of the evidence.

The question of whether a servant is a vice-principal is a mixed question of law and fact and is thus for the jury to determine. Hugo Schmeltzer Co. v. Paiz, 104 Tex. 563, 141 S.W. 518, 521 (1911). It can be inferred from Mr. Yanez’s testimony that, because of his length of service with Funk Farms and his otherwise total control over the employees on the job, he also was clothed with the authority to hire and fire those who worked under him. To hold otherwise, under these circumstances, would be to totally subvert the vice-principal rule by allowing principals to simply testify that only they have the authority to hire and fire individuals under their employment. Appellant’s points of error one through four are overruled.

Appellant’s fifth point of error complains of the trial court’s action in granting appel-lee Montoya leave to file a trial amendment to conform his pleading to the damages found by the jury. Appellee Montoya’s trial pleadings asked for damages in the total amount of $69,000.00 in the areas of lost earnings and loss of physical capacity in the past and in the future. The jury awarded $155,000.00 in damages.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pope v. Moore
711 S.W.2d 622 (Texas Supreme Court, 1986)
Sandefur v. Sandefur
232 S.W.2d 111 (Court of Appeals of Texas, 1950)
Pool v. Ford Motor Co.
715 S.W.2d 629 (Texas Supreme Court, 1986)
Glover v. Texas General Indemnity Co.
619 S.W.2d 400 (Texas Supreme Court, 1981)
Schrader v. Artco Bell Corp.
579 S.W.2d 534 (Court of Appeals of Texas, 1979)
Larson v. Cactus Utility Co.
730 S.W.2d 640 (Texas Supreme Court, 1987)
Sartain v. Southern National Life Insurance Co.
364 S.W.2d 245 (Court of Appeals of Texas, 1962)
LeJeune v. Gulf States Utilities Company
410 S.W.2d 44 (Court of Appeals of Texas, 1966)
Dyson v. Olin Corp.
692 S.W.2d 456 (Texas Supreme Court, 1985)
Hartford Accident & Indemnity Co. v. Thurmond
527 S.W.2d 180 (Court of Appeals of Texas, 1975)
Allied Finance Co. v. Garza
626 S.W.2d 120 (Court of Appeals of Texas, 1981)
Garza v. Alviar
395 S.W.2d 821 (Texas Supreme Court, 1965)
Fry v. Guillote
577 S.W.2d 346 (Court of Appeals of Texas, 1979)
McCorstin v. Mayfield
274 S.W.2d 874 (Court of Appeals of Texas, 1955)
Lantry-Sharpe Contracting Co. v. McCracken
150 S.W. 1156 (Texas Supreme Court, 1912)
Hugo, Schmeltzer Company v. Paiz
141 S.W. 518 (Texas Supreme Court, 1911)
H. & T. C. R'y Co. v. Rider
62 Tex. 267 (Texas Supreme Court, 1884)
Waring v. Harris
221 S.W.2d 345 (Court of Appeals of Texas, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
736 S.W.2d 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/funk-farms-inc-v-montoya-texapp-1987.