Texas Vegetable Union v. Obets

COBBS, J. Appellee sued appellant for damages growing out of an' alleged breach of contract of employment. It is alleged that appellant was operating a farm in Zavala county and employed appel-lee, on August 4, 1924, to manage the same for 1 year, for the sum of $1,800 per year, payable monthly, and hired from him machinery, agricultural implements, and teams, and agreed to pay for their use $600 per annum, payable $50 per month. Appellee was paid for the first year and was again emplpyed for another year upon the same terms. It is alleged he was discharged from the service's on February 4, 1926, without cause or fault on his part, 6 months before the employment would have ended. On the trial of the case appellee relied upon the last items set forth in his petition, as follows: “For hire of teams, machinery, and appliances August 15, 1925, to August 15, 1926, $600; for services of plaintiff under contract of August 15, 1925, from February 15, 1926, to August 15, 1926, at $150 per month, $900”- — claiming that the appellant •had paid him for the first 6 months’ service of the second year, but had paid him nothing for the use of his teams, implements, etc. The appellee answered by general denial and special answer, which, as far as is pertinent to this statement, is as follows: ■ “And for special answer herein, if required, the defendant says that it never employed the plaintiff or -his teams or machinery and agricultural implements as alleged by him * * * and that it is not indebted to him in any amount whatever.” The case was submitted to a jury' on special issues, and, those issues being determined [1059] favorably to appellee, tbe court rendered judgment in favor of the appellee against appellant, for hire of teams, machinery, and appliances from August 15, 1925, to February 4, 1926, $2S1.74, and for services from February 4, 1926, to August 14, 1926, $900. The question of hire for the teams and machinery was not submitted to the jury, although it was a sharply contested point and there was evidence on both sides clearly raising the issue as to whether or not the appellant was liable for their hire, the appellant contending that the court erred in rendering judgment for the said hire, on an issue of fact, not submitted to the jury. The issue presents the contention that the Texas Vegetable Union was operating the farm through J. J. Albers, its agent. The contention of appellant was that it was not operating the farm at all and that J. J. Albers was not acting for it at all, but the farm was at all times operated by Flory & Albers, a co-partnership firm composed of Joe Flory and J. J. Albers, acting through its general manager, J. J. Albers, which firm had no connection with the Texas Vegetable Union, except that the members were holders of stock therein and officers. Passing out of sight a discussion of all the propositions of law and assignments urged, we reach the real issue in this case. The verdict of the jury is against the great preponderance of the evidence. The potent facts show that the firm of Flory & Albers was farming the land for their joint use, hiring the labor and paying for it. There is no material and satisfactory evidence that appellant was operating the farm at all and employing and paying for labor. The burden of proof was upon appellee to show that he was employed by appellant, and he has not discharged that burden, and the fact that the issue was raised by the pleading and so found by the jury has no controlling effect in the absence of sufficient material evidence to support it. We find nothing in the statement of Albers, who happened also to be the manager of the firm of Flory & Albers, that he was acting for and employing appellee for appellant. While the two positions were coincident, his alleged statements were directly against appellee’s conten-, tion., Both Flory and Albers stated positively, and it was supported by other testimony, that they were operating the farm for their own benefit, employing labor and paying for it in their own interest, and not for appellant. When the testimony so overwhelmingly preponderates against the finding of the jury and there is so little, if any, material testimony to the contrary, we cannot permit the verdict to stand. The judgment of the trial court is reversed and the cause is remanded for another trial.