F. B. McIntire Equipment Co. v. Henderson

• Decision Date: 15 October 1971
• Docket Number: No. 17244,17244
• Citation: 472 S.W.2d 566
• Parties: F. B. McINTIRE EQUIPMENT COMPANY v. Vernon HENDERSON et al.
• Court: Texas Court of Appeals

Page 566

472 S.W.2d 566

F. B. McINTIRE EQUIPMENT COMPANY v. Vernon HENDERSON et al.

No. 17244.

Court of Civil Appeals of Texas Fort Worth.

Oct. 15, 1971.

Rehearing Denied Nov. 12, 1971.

McGown, Godfrey, Decker, McMackin, Shipman & McClane and Kent D. Kibbie, Fort Worth, Gardere, Porter & DeHay and Gordon H. Rowe, Jr., Dallas, for appellant.

Herrick, Jones & Bell and John W. Herrick, Fort Worth, for appellees.

OPINION

BREWSTER, Justice.

The defendant, F. B. McIntire Equipment Company, is here appealing from a judgment in favor of both plaintiffs, Henderson and Crabb, rendered in a suit for damages for personal injuries sustained by the two plaintiffs when the bottom of a crane belonging to the defendant fell on them. The judgment awarded Henderson $161,918.55 in damages and Crabb $81,007.20 in damages.

We affirm the judgment.

In August, 1968, Beals Mechanical Contractors, Inc., had a sub-contract to install air conditioning equipment into a building at Tarleton State College at Stephenville, Texas. Both plaintiffs were working for Beals on that job. The plaintiff Henderson, although a plumber, was also the supervisor of the Beals crew which included the other plaintiff, Crabb, who was a welder. The Beals Company engaged the defendant, F. B. McIntire Equipment Company, to send to the job one of its 35 ton cranes with an operator and an oiler, without supervision, for the purpose of having the crane lift air conditioning equipment onto the roof of one of the school buildings so that the Beals Company could install the equipment. F. B. McIntire Equipment Company rented the crane, the operator and the oiler to the Beals Company for a charge of $35.00 per hour. W. A. Salter was the crane operator.

On the occasion in question the work of lifting the equipment onto the building had been completed and the crane's boom was being dismantled on the school's premises for transportation back to its base in Fort Worth, when it fell and hurt the plaintiffs.

The two plaintiffs were engaged in assisting defendant's employees in the job of dismantling the boom at the time it fell upon them.

The theory of plaintiffs' case was that their injuries were proximately caused by negligence of the defendant's employee, Salter, committed while he was acting within the scope of his employment for the defendant in dismantling the boom.

One defense to the suit that was urged by appellant was that at the time they were injured both of the plaintiffs had become borrowed employees of appellant, F. B. McIntire Equipment Company, in the activity of dismantling the boom, that this appellant carried Workmen's Compensation Insurance at the time, and therefore could not be held liable in damages to plaintiffs for their injuries.

The court submitted special issues Nos. 7 and 8 to the jury, inquiring whether it found from a preponderance of the evidence that Henderson (in No. 7) and Crabb (in No. 8) were at the time the boom was being dismantled a special or borrowed employee of F. B. McIntire Equipment Company. To each issue the jury answered, 'We do not.'

By its points of error Nos. 12 and 13 defendant contends that even though the jury did find the borrowed servant issues in plaintiffs' favor, the court still erred in rendering judgment for the plaintiffs because the evidence established conclusively as a matter of law that both Henderson and Crabb were borrowed employees of the appellant, McIntire, at the time they were injured.

We overrule both points. We hold that the evidence did not establish as a matter of law that either plaintiff was a borrowed servant of appellant at the time they were injured.

We hold on that point that the evidence in this record conclusively established as a matter of law that the two plaintiffs were not borrowed servants of this appellant at the time in question .

The evidence offered during the trial relating to the borrowed servant question is summarized below.

Crabb testified that at all times while working on the boom he was looking to Beals Company for his orders as to what to do, but that while helping in dismantling the boom he did receive suggestions from defendant's crane operator, Salter, as to the procedures for him to follow in helping and he followed them; he followed Salter's suggestions as to what to do in a spirit of cooperation because neither he nor his foreman knew anything whatever about the technical aspects of working on a boom; his employer, Beals Company, paid him his salary for the time he spent working on the boom; on this occasion he would work a bit in helping on the crane rig and then do other things in connection with Beals Company's job and then come back and help on the rig again; if his foreman had told him to quit helping with the crane and go do some welding work, he would have done so; Salter would tell the plaintiffs when to knock out a pin from the boom and they would do so; he also told them the sequence and manner of taking the boom apart; Salter told them step by step how to take the boom apart because they did not know; in following Salter's instructions he was obeying his foreman's orders; and if he had seen something on the job that had to do with welding that needed to be done while he was helping on the boom he would have gone and done it.

Henderson testified that he had no conversation with the defendant's people to the effect that he was going to put the right to control some of Beal's employees in defendant in connection with their helping on the boom; he, in a spirit of cooperation, helped defendant's employees work on the boom; he, as the Beals Company foreman, did not relinquish his right to control his crew in the details of their work while helping with the boom; if while helping defendant on the boom something had come up that needed to be done on the plumbing work, he would have sent his men to do it and would have left the dismantling process; since he knew nothing at all about working on the boom he did follow Salter's suggestions as to the procedure to follow while working on the boom; the Beals Company paid his salary during the whole time; he, as foreman for Beals, was in charge of his crew at all times.

The defendant's crane operator, Salter, testified: that the plaintiffs asked him if they could help with the boom; he did not ask them to help; they told him at the time that they knew nothing at all about the crane rig; he could tell that by watching them; and he told them that he would assist them all that he could in working on the rig and he tried to work with plaintiffs; he told them not to do anything without him telling them to do it; working on such a rig could be dangerous if one knew nothing about it; on other occasions on other jobsites employees of other employers than defendant, in a spirit of cooperation offered to assist him in dismantling the boom; and that was what was done in this case when the plaintiffs in a spirit of cooperation offered to help him dismantle the boom; he told them what to do in helping him dismantle the boom because they were in a hurry to get him out of there because of the $35.00 an hour rental on the rig; and he would be in a hurry to get the rig out of there, too, if he had one rented at that rate, and if plaintiffs had not volunteered to help dismantle the boom he and his oiler would have done it alone.

Prior to trial the plaintiffs submitted a number of interrogatories to defendant to be answered by it in accordance with the rules of civil procedure. Among others, interrogatory No. 14 propounded to defendant by plaintiffs and its answers thereto were offered into evidence by plaintiffs and that interrogatory and defendant's answer thereto are as follows:

Interrogatory: 'Please state whether the practice of using employees other than defendant's employees in dismantling the boom is a usual or unusual practice.' Answer: 'Generally speaking, contractors employees help dismantling the boom because the contractor is paying for the crane under an equipment rental agreement on an hourly basis.'

The undisputed evidence showed that the plaintiff Henderson, who was a Beals Company supervisor, had instructed Crabb and the rest of his crew to assist Salter in both building the boom up and in dismantling it and that Henderson also personally assisted in both of those operations.

By appellant's own admissions in answer to interrogatories the reason for the Beals Company employees (plaintiffs) helping in dismantling the boom was to hasten the departure of the rented crane and its crew from the jobsite and thus lessen the rental cost to their employer for the use of the crane and its crew. Salter, defendant's crane, operator, admitted this fact also. Crabb also testified to this fact. No evidence during the trial tended to indicate any other reason for the Beals Company employees helping to dismantle the boom. There is no question but what the service of the plaintiffs in helping dismantle the boom thus inured to the benefit of their own employer, because it helped lessen the rental that their employer, the Beals Company, would be out for the use of the crane, and in that way helped add to the profit their employer would ultimately realize from the job being done.

The evidence conclusively establishes that plaintiffs were helping dismantle the boom with the permission of defendant.

The law applied in deciding the case of Eason v. S. & E.T. R'y Co., 65 Tex. 577 (Tex.Sup., 1886) would also control a decision in this case.

The plaintiff in the Eason case was a general employee of a lumber mill that shipped lumber in defendant Railroad's cars. His job was to load the cars with lumber for his employer, the mill. The Railroad had placed a car in a certain place to be loaded by the mill employees, but in that place it could not be conveniently loaded, so to have it moved to a proper place for loading was in the interest of plaintiff's employer (the mill). Plaintiff told the Railroad Conductor of the...