J. A. Robinson Sons, Inc. v. Wigart, 7727

• Citation: 420 S.W.2d 474
• Decision Date: 02 October 1967
• Docket Number: No. 7727,7727
• Parties: J. A. ROBINSON SONS, INC., Appellant, v. Helen O WIGART et al., Appellees. . Amarillo
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 474

420 S.W.2d 474

J. A. ROBINSON SONS, INC., Appellant, v. Helen O WIGART et al., Appellees.

No. 7727.

Court of Civil Appeals of Texas.

Amarillo.

Oct. 2, 1967.

Rehearing Denied Oct. 30, 1967.

Burford, Ryburn & Ford, Dallas, Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, for appellant.

Warren Burnett and Robert D. Pue, Odessa, for appellees.

CHAPMAN, Justice.

Helen O. Wigart, her two minor children and the minor child of her deceased husband by a former marriage brought suit against J. A. Robinson Sons, Inc., for the wrongful death of William Robert Wigart, their husband and father. Texas Employers' Insurance Association, the workmen's compensation carrier for Wigart's employer intervened to assert its recoupment rights under the Workmen's Compensation Act. Wigart, an employee of Boman-Chase, was killed on August 1, 1963, when a welding shed fell from a flat-bed truck owned by Robinson and driven by Chester Britain, and struck Wigart. The trial court's judgment, based on a jury verdict, was rendered for the plaintiffs below.

Boman-Chase, a construction company, was employed by Phillips Petroleum Co. to dismantle a cooling tower which was located at a Phillips refinery. Approximately twelve of Boman-Chase's employees were engaged in this particular job. Some four days prior to the incident resulting in Wigart's death, Robinson was contacted by Phillips and made arrangements for Robinson to furnish a truck and trailer and a driver. The tractor or trailer was 8 28 with a capacity of 12 tons. The truck was used for the hauling of material from the dismantled cooling tower. When this was completed, a metal welding shed was placed on the trailer and moved to another site. The shed was constructed of corrugated iron, was approximately 28 --30 long and 10 --12 wide. While the shed was being unloaded it slid from the truck and struck Wigart, causing his death.

In response to Special Issues, the jury found: (1) Chester Britain was acting in the course of his employment for J. A. Robinson Sons, Inc.; (2) that Britain was negligent in slacking the winch line immediately prior to the accident; (2b) that such negligence was a proximate cause of Wigart's death; (4) that Wigart removed a pin at the rear corner of the trailer immediately before his fatal injury; (4b) that such action was not negligence; (5) that it was not open and obvious that Wigart might sustain an injury in the very manner in which he sustained his fatal injury; (5b) that he did not know and appreciate the danger; (6a) that Wigart did not fail to maintain proper lookout; (7) that a gust of wind was not the sole proximate cause of Wigart's death; (8) that Chester Britain was not a special or loaned employee of Boman-Chase; (9) that Wigart's death was not the result of an unavoidable accident. The jury awarded a total of $92,500.00 damages to Mrs. Wigart and the three minor children. Upon these findings, judgment was rendered for the plaintiffs and intervenor in the amount found by the jury.

Appellant's first group of points of error attack the judgment against it on the basis of Britain being a special or loaned employee of Boman--Chase. The jury found Britain was acting within the scope of his employment for appellant Robinson, and that he was not a special or loaned employee of Boman-Chase. Appellant contends there is no evidence and insufficient evidence to support these issues. Boman-Chase had a contract with Phillips Petroleum Company to dismantle the cooling tower. During the last four days of the job, Robinson, at Phillips' request, sent a truck and a driver to the job for the purpose of hauling the dismantled materials to a designated location. The loading and unloading of the material was performed by employees of Boman-Chase. Robinson's driver only operated the truck and its equipment. No 'Swamper' or assistant was assigned by Robinson to Britain. The usual duties of such an assistant, such as giving signals to the driver, were performed by various employees of Boman-Chase. The particular job had been completed except for the moving of the welding shed. The shed was loaded upon the truck by means of pulling it upon the trailer with the winch line on Robinson's truck with the assistance of another winch truck not owned by Robinson. It was then secured on the trailer by means of chains and the winch line, and then moved approximately one mile to another location. It was during the process of unloading the shed from the trailer that Wigart was fatally injured. It was bring unloaded by what was referred to as 'shaking it off'. The winch line was unwound two to three feet; the truck was then placed in reverse. It moved two to three feet when the driver applied the brakes. By repeating this process the shed was gradually moved toward the end of the trailer by its own momentum until it reached a 'breaking point' and then it would slip from the trailer by its own weight. During this time Wigart was outside the truck on the right side and Miller, another Boman-Chase employee, was on the opposite side. After several 'shaking' movements of the truck and while the winch line was loose, the shed fell from the trailer and struck Wigart.

One of the principal questions presented is whether Britain, a general employee of Robinson, became a special or loaned employee of Boman-Chase for this particular operation. A determination of this question calls for the consideration of many factors. It generally depends on which of the employers retains the right of control and direction over the employee and the job the employee was engaged in while performing the act complained of. 57 C.J.S. Master and Servant § 566, page 284--291. Restatement of the Law of Agency, Vol. 1, Section 227. The general rule was stated by our Supreme Court in Producers Chemical Company v. McKay, 366 S.W.2d 220 in the following language:

'If the general employees of one employer are placed under the control of another employer in the manner of performing the services, they become his special or borrowed employees. If the employees remain under control of their general employer in the manner of performing their services, they remain employees of the general employer and he is liable for the consequences of their negligence.'

In McKay, the court lists certain factors to be considered where there is only an implied contract between the employers as to the right of control over the employee. These include the nature of the general project; the nature of the work to be performed by the machinery, and employees furnished; acts representing an exercise of actual control; the right to substitute another operator of the machine, etc.

It is undisputed there was no contract whereby Robinson expressly relinquished the right of control of Britain in the operation of the truck and its equipment. Our courts have repeatedly held that the decisive factor in this type of case is the control of the 'machine' rather than the control of the results of the work desired. Insurors Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W .2d 217. Goodwin v. Wilhelm Steel Construction Co. (Tex.Civ.App.) 311 S.W.2d 510 (Writ Ref.). The proper operation of the truck and its winch and gears required some skill and knowledge of its operation. The job was of short duration. The relocation of the welding shed was to have been the last of the work to be performed by Britain on this particular job and this occurred on the fourth day. Employees of Boman-Chase loaded and unloaded the dismantled material onto Robinson's truck and directed the driver where to haul it. There is no evidence Boman-Chase's employees exercised any control over Britain's operations of the truck or its equipment. This was Britain's responsibility. Robinson had the sole right to substitute another driver for its truck and Robinson charged Phillips by the hour for its truck and driver and the former paid Britain for his services. Under these facts, the only reasonable inference to be drawn is that Robinson, the general employer, had retained control over its driver.

However, appellant strongly urges that in performing the special act of 'shaking off' the shed from the trailer, Britain was within the scope of the business of Boman-Chase and under Wigart's direction and control. They argue the unspooling of the winch line was an essential part of unloading the shed and that this operation was under the supervision of Wigart. Appellant's position is that the determining factor is Wigart's direction as to the manner in which the truck and winch were to be used to unload the shed and not the manner in which Britain shifted his gears or unspooled the winch line. Under the facts and circumstances of this case this contention is without merit. Insurors Indemnity & Insurance Co. v. Pridgen (supra), and Polanco v. Austin Bridge Company (Tex.Civ.App.) 348 S.W.2d 728. Wigart and Britain both decided the best method of unloading the welding shed was to 'shake it off'. Wigart designated the place to unload the shed. Britain placed his truck in position, and when Wigart indicated it was clear, Britain began the 'shaking off'. Britain decided when to begin each truck movement and when to unspool the winch. He operated the truck and gears without any direction or signal from Wigart. Britain was in full control of the truck and its equipment and how and when it was to be used. There was ample evidence to support the jury finding Britain was acting within the scope of his employment of Robinson and was not a loaned employee of Boman-Chase.

Appellant levelled numerous objections to Special Issue No. 1 and the accompanying definition of 'course of employment'. The issue inquired if Britain was acting within the scope of his employment for Robinson 'at the time of the accident in question'. It is urged the issue did not confine the question of employment to the 'shaking off' operation; the issue was a comment on the weight of...