DAWKINS, District Judge.
Appellant insured the workmen’s compensation risk of Vilbig Construction Company (herein called Vilbig), which had a subcontract to furnish dirt and gravel on what is referred to as the Chance-Vought job near Dallas. John Thomas Curtis had an arrangement with Vilbig under which he furnished his own truck and drove it on Vilbig jobs, hauling dirt or gravel as instructed. On February 23, 1954, while traveling from Vilbig’s pit to the site of the ChanceVought job, Curtis was killed in a railroad crossing accident. His widow brought this action, individually and as next friend of her minor son, for benefits under the Texas Workmen’s compensation statute, Vernon’s Ann.Civ.St. art. 8306, § 1 et seq., alleging diverse citizenship. Appellant’s answer took the position that Curtis was not an employee at the time of his death, but was an independent contractor not covered by the statute. The trial was to the judge without a jury and resulted in judgment for appellee, granting the maximum benefits provided in the statute. In its appeal from that judgment, appellant contends that: (1) the evidence adduced shows as a matter of law that Curtis was an independent contractor; and (2) even conceding that he was an employee, the evidence as to his earnings fails to prove appellee’s right to anything in excess of the minimum benefits.
The parties agree that in determining whether a particular person is an employee or an independent contractor, the coúrts of Texas apply the prevailing test of right of control over the details of the work as opposed to the final result.
The first specification requires us to determine if the trial judge has correctly applied this principle of law to the facts of the case; and, as we said in the Thibodeaux case (footnote 1), that determination must be made upon consideration of the testimony as a whole.
The evidence adduced by appellee consisted of testimony from her major
son (who had worked with his deceased father) and other truck drivers having similar arrangements with Vilbig. Briefly summarized, it was to the effect that Curtis was hired with his truck when Vilbig had jobs requiring his services; that he operated and maintained his truck at his own expense; that Vilbig’s supervisory employees told the drivers when and where to appear with their trucks, when to start hauling, when to stop, how to load, which route to take, where and how to unload, and when to take a “coffee break”; that any drivers who failed to heed these instructions would be discharged or would not be called again; that drivers were often sent from one job to another on the same day; that they were usually paid by the hour for short hauls and by the yard or load for long hauls; that Vilbig did not deduct social security and withholding taxes from their earnings. Appellee’s son further testified that he was driving ahead of his father on the day of the accident, along a route designated by Vilbig’s foreman. He said they were being paid 60$ per yard on that particular job.
Appellant’s testimony was to the effect that all drivers were hired as independent contractors and that the only instructions given them were those necessary to insure the availability of dirt or gravel at the time and place needed. The owner of a fleet of trucks testified that he often furnished trucks and drivers to Vilbig under similar arrangements and considered them to be his employees, not Vilbig’s.
From this testimony the trial judge found that Curtis was “an employee of the Vilbig Company in transferring dirt from its drag line” to its jobs “as that employer chose to direct him.” We note the presence of some facts which, standing alone, indicate Curtis was an independent contractor, and we recognize some merit in appellant’s argument that the general outlines of the arrangement lend support to its contention. On the other hand, if the testimony of appellee’s witnesses is believed, Vilbig had and actually exercised the right of control over virtually every detail of performance by the drivers. After a thorough study of the Texas decisions we are unable to hold that the trial court’s finding was clearly erroneous.
The question raised by the second specification arose because of a misunderstanding between counsel. At the beginning of the trial, when the judge asked if counsel desired to make any statements, a discussion ensued as quoted in the footnote.
Counsel for appellee interpreted this discussion to be a joint stipulation that the
only
issue in the case was the question of whether Curtis was an employee or an independent contractor,2
and limited his proof to that point.
At the' close of the evidence, the court asked about the amount of wages, and an off-the-record discussion between counsel followed. Counsel for appellant then made the following statement: “If Your Honor please, I am in no position to stipulate about it, because I have no idea how much he could have earned, because he paid his own expenses and depreciation on his truck. He operated an independent business. I wouldn’t know what to say.”
Thereupon, appellee was allowed to reopen her case, and the deceased’s son took the stand again. He stated that he had worked with his father for fifteen years and that at the time of the acei■dent the latter was making approximately $24 per day, usually working five days per week. Appellee herself had testified earlier that Curtis had worked as a hauler with his truck for five and a half years, mostly with Vilbig. Appellant offered no evidence at all as to the length of time Curtis was so employed or the amounts paid him, although it undoubtedly had access to its insured’s records of payments to such drivers. The trial judge then granted an award of $9,000, the maximum under the statute.
Appellant now argues that there is nothing in the record from which it can be determined what Curtis spent for the operation and maintenance of his truck, in order to compute his net earnings. It •contends that for aught this record shows Curtis might have lost money, and that the court should have limited recovery to the minimum of $9 per week because appellee had not borne the burden of proving herself entitled to more. In support of its argument it cites American General Insurance Co. v. Hightower, Tex.Civ.App., 264 S.W.2d 481.
In the first place we think it might well be held that counsel for appellant had waived this issue by the remarks quoted in footnote 2, particularly in view of his persistence in pursuing exclusively the theory that Curtis “operated an independent business”. He failed to produce any evidence which might have helped the trial judge in determining the amount of the award, and we are constrained to express the feeling that his approach had the effect of misleading counsel for appellee and the court. Had he intended to make an issue of the amount of the award, he could easily have expressed that intention clearly at the pre-trial discussion, rather than make the ambiguous remarks quoted.
In any event, we are convinced that the trial court was correct in awarding the maximum benefits.
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DAWKINS, District Judge.
Appellant insured the workmen’s compensation risk of Vilbig Construction Company (herein called Vilbig), which had a subcontract to furnish dirt and gravel on what is referred to as the Chance-Vought job near Dallas. John Thomas Curtis had an arrangement with Vilbig under which he furnished his own truck and drove it on Vilbig jobs, hauling dirt or gravel as instructed. On February 23, 1954, while traveling from Vilbig’s pit to the site of the ChanceVought job, Curtis was killed in a railroad crossing accident. His widow brought this action, individually and as next friend of her minor son, for benefits under the Texas Workmen’s compensation statute, Vernon’s Ann.Civ.St. art. 8306, § 1 et seq., alleging diverse citizenship. Appellant’s answer took the position that Curtis was not an employee at the time of his death, but was an independent contractor not covered by the statute. The trial was to the judge without a jury and resulted in judgment for appellee, granting the maximum benefits provided in the statute. In its appeal from that judgment, appellant contends that: (1) the evidence adduced shows as a matter of law that Curtis was an independent contractor; and (2) even conceding that he was an employee, the evidence as to his earnings fails to prove appellee’s right to anything in excess of the minimum benefits.
The parties agree that in determining whether a particular person is an employee or an independent contractor, the coúrts of Texas apply the prevailing test of right of control over the details of the work as opposed to the final result.
The first specification requires us to determine if the trial judge has correctly applied this principle of law to the facts of the case; and, as we said in the Thibodeaux case (footnote 1), that determination must be made upon consideration of the testimony as a whole.
The evidence adduced by appellee consisted of testimony from her major
son (who had worked with his deceased father) and other truck drivers having similar arrangements with Vilbig. Briefly summarized, it was to the effect that Curtis was hired with his truck when Vilbig had jobs requiring his services; that he operated and maintained his truck at his own expense; that Vilbig’s supervisory employees told the drivers when and where to appear with their trucks, when to start hauling, when to stop, how to load, which route to take, where and how to unload, and when to take a “coffee break”; that any drivers who failed to heed these instructions would be discharged or would not be called again; that drivers were often sent from one job to another on the same day; that they were usually paid by the hour for short hauls and by the yard or load for long hauls; that Vilbig did not deduct social security and withholding taxes from their earnings. Appellee’s son further testified that he was driving ahead of his father on the day of the accident, along a route designated by Vilbig’s foreman. He said they were being paid 60$ per yard on that particular job.
Appellant’s testimony was to the effect that all drivers were hired as independent contractors and that the only instructions given them were those necessary to insure the availability of dirt or gravel at the time and place needed. The owner of a fleet of trucks testified that he often furnished trucks and drivers to Vilbig under similar arrangements and considered them to be his employees, not Vilbig’s.
From this testimony the trial judge found that Curtis was “an employee of the Vilbig Company in transferring dirt from its drag line” to its jobs “as that employer chose to direct him.” We note the presence of some facts which, standing alone, indicate Curtis was an independent contractor, and we recognize some merit in appellant’s argument that the general outlines of the arrangement lend support to its contention. On the other hand, if the testimony of appellee’s witnesses is believed, Vilbig had and actually exercised the right of control over virtually every detail of performance by the drivers. After a thorough study of the Texas decisions we are unable to hold that the trial court’s finding was clearly erroneous.
The question raised by the second specification arose because of a misunderstanding between counsel. At the beginning of the trial, when the judge asked if counsel desired to make any statements, a discussion ensued as quoted in the footnote.
Counsel for appellee interpreted this discussion to be a joint stipulation that the
only
issue in the case was the question of whether Curtis was an employee or an independent contractor,2
and limited his proof to that point.
At the' close of the evidence, the court asked about the amount of wages, and an off-the-record discussion between counsel followed. Counsel for appellant then made the following statement: “If Your Honor please, I am in no position to stipulate about it, because I have no idea how much he could have earned, because he paid his own expenses and depreciation on his truck. He operated an independent business. I wouldn’t know what to say.”
Thereupon, appellee was allowed to reopen her case, and the deceased’s son took the stand again. He stated that he had worked with his father for fifteen years and that at the time of the acei■dent the latter was making approximately $24 per day, usually working five days per week. Appellee herself had testified earlier that Curtis had worked as a hauler with his truck for five and a half years, mostly with Vilbig. Appellant offered no evidence at all as to the length of time Curtis was so employed or the amounts paid him, although it undoubtedly had access to its insured’s records of payments to such drivers. The trial judge then granted an award of $9,000, the maximum under the statute.
Appellant now argues that there is nothing in the record from which it can be determined what Curtis spent for the operation and maintenance of his truck, in order to compute his net earnings. It •contends that for aught this record shows Curtis might have lost money, and that the court should have limited recovery to the minimum of $9 per week because appellee had not borne the burden of proving herself entitled to more. In support of its argument it cites American General Insurance Co. v. Hightower, Tex.Civ.App., 264 S.W.2d 481.
In the first place we think it might well be held that counsel for appellant had waived this issue by the remarks quoted in footnote 2, particularly in view of his persistence in pursuing exclusively the theory that Curtis “operated an independent business”. He failed to produce any evidence which might have helped the trial judge in determining the amount of the award, and we are constrained to express the feeling that his approach had the effect of misleading counsel for appellee and the court. Had he intended to make an issue of the amount of the award, he could easily have expressed that intention clearly at the pre-trial discussion, rather than make the ambiguous remarks quoted.
In any event, we are convinced that the trial court was correct in awarding the maximum benefits. The Texas statute provides three separate methods of determining the average weekly wage,
and the proof clearly makes the
first
method applicable here. Uncontradicted testimony shows that Curtis had been employed as a truck driver hauling dirt and gravel for more than a year prior to his death and made $24 per day, five days a week. By the terms of the statute, this testimony entitled appellee to the maximum benefits.
The opinion in the Hightower case shows that the jury found the injured employee had not worked substantially a year preceding the accident and that there was no employee whose wages could be used as a guide for the calculation required by the
second
subsection of the statutory definition of “ ‘Average weekly wages’ ”. For this reason the court held there was nothing upon which the award could properly be based. The case is therefore distinguishable from ours.
Further, we are of the opinion that once a person is held to be an employee, his “wages” are the amounts he is paid by his employer for his work, not his “net profit” from the employment. We think it would not be contended that a carpenter or mechanic required to provide his own transportation to and from work and furnish his own tools should be required to prove and deduct automobile expenses and the cost of tools in order to establish his wages from employment. Having held the judge did not err in finding Curtis was an employee rather than an independent contractor, we perceive no reason to require such proof and deductions here. We have found no other Texas cases mentioning these factors, and the expressions thereon in the High-tower case were not necessary to support the decision. We are therefore unwilling to accept appellant’s argument that the Hightower opinion is binding authority for its contention.
The judgment appealed from is
Affirmed.