Sanchez v. Leggett, 726

• Decision Date: 30 November 1972
• Docket Number: No. 726,726
• Citation: 489 S.W.2d 383
• Parties: Benjamin G. SANCHEZ, Appellant, v. Kenneth R. LEGGETT dba Leggett Welding & Construction Company, Appellee.
• Court: Texas Court of Appeals

Page 383

489 S.W.2d 383

Benjamin G. SANCHEZ, Appellant, v.Kenneth R. LEGGETT dba Leggett Welding & Construction Company, Appellee.

No. 726.

Court of Civil Appeals of Texas Corpus Christi.

Nov. 30, 1972.

Rehearing Denied Dec. 14, 1972.

Utter, Chase, Cartwright & Bennett, Carl C. Chase, Allison, Maddin, White & Brin, Raul Garcia, Corpus Christi, for appellant.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, W. N. Woolsey, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

The appellantBenjamin G. Sanchez, brought suit against Kenneth R. Leggett, d/b/a Leggett Welding & Construction Company for damages by reason of personal injuries sustained as a result of the negligence of one of Leggett's employees.The case was tried before a jury where Sanchez established negligence on the part of Leggett, proximate cause resulting from such negligence, and clear findings of no contributory negligence on the part of Sanchez.The jury awarded damages to Sanchez for personal injuries in the amount of $58,995.55.¹The jury, however, found that Sanchez was the borrowed employee of Leggett.As a result of such finding, the trial court entered judgment that Sanchez, as well as the intervenor, ² take nothing.

Pruett and Leggett operated separate businesses that provided services to major and independent oil companies in and around Beeville, Texas.Pruett and Leggett were in the same type of business and each used each other's employees.This type of employment contemplated sending employees when needed at various times to different locations to work for one employer or the other.It was the practice of the respective employees of Pruett and Leggett to take direction and supervision from the other general employer.Pruett and Leggett had entered into an oral agreement whereby they agreed that if either of them became shorthanded they could request the temporary service of one or more of the other's general employees.The decision to grant the request would rest with the employer to whom the request was made.

On October 29, 1967, the plaintiff Sanchez (the general employee of Pruett) sustained serious personal injuries while engaged in cleaning a 'heater treater' on an oil field lease while working for Leggett.Leggett had contracted to do the cleaning job.Because of a shortage of his employees, Leggett contacted Pruett and asked him to furnish two workers to participate in the cleaning operation.On the morning of the 29th, Leggett's foreman picked up Sanchez and took him to the jobsite.After they arrived, Leggett's foreman told Sanchez to clean out the heater.He and another man were placed in a mobile type basket which was attached to a pickup truck.While working on the heater it toppled over, killing the fellow worker and seriously injuring Sanchez.The National Surety Corporation(intervenor) carried insurance on Pruett's employees.They paid workmen's compensation to Sanchez under the policy it had with Pruett.Leggett's workmen's compensation carrier made no attempt to pay Sanchez.It was only after Sanchez sued Leggett that Leggett and his insurance carrier claimed that Sanchez was the employee (borrowed) of Leggett.

Pruett and Leggett's oral contract was undisputed.It in no way affected the general conditions of the employment that each had with its respective employees, that is, each employer paid the salary, withholding taxes, social security, vacation, etc. of his general employee.The agreement encompassed arrangements for temporary labor and equipment on an irregular basis.The agreement was that the general employer (either Pruett or Leggett) whoever was providing the temporary help, had the right to determine which employee was to be sent to a job and the other employer had the right to accept or reject the employee.Both Pruett and Leggett carried their own workmen's compensation insurance and each specifically agreed that should injury occur to any employee, the employer in whose general employment the injured employee belonged would be responsible for notification and payment of workmen's compensation benefits.

Appellant poses the question to this Court as its principal point of error.Did the trial court err in submitting Special IssueNo. 13³ to the jury in view of the undisputed evidence of a direct contract between Sanchez's general employer (Pruett) and the defendant(Leggett) that Sanchez was Pruett's employee at the time of his injury?Sanchez contends that with full knowledge of the details of the employment relationship with regard to the men being worked by each respective employer, that, at the time of Sanchez's injury, and with full knowledge of the details of the type of employment undertaken, appellee Leggett and Sanchez's employer Pruett had entered into a contract the terms of which are undisputed, which provided that in the event of an injury on the job where one employer was working the other employer's man, that for the specific purpose of injury occurring on that job to that employee, then in that event, such employee for the purpose of that injury would be considered as an employee of his general employer.The general employers agreed that insurance would be carried in this regard.⁴

Appellee Leggett testified that 'My (insurance) company would take care of my employee and your (insurance) company would take care of yours.'Appellants point to specific excerpts in the testimony to substantiate their position.Leggett testified:

'Q . . . But you consider him (Sanchez) to be a Pruitt man, right?

A Right.

Q And at the time of the accident he was a Pruitt man?

A Right.'

'Q Let me put it this way: Was he(Sanchez) your general employee?

(Leggett)A No.

Q There is no doubt in your mind about that?

A No doubt in my mind.

Q Was he Mr. Pruitt's general employee?

A Yes.'

There was no evidence that the parties to the contract, appellee Leggett or appellant Sanchez, or his employer Pruett, had made a specific agreement that Sanchez would or would not be considered Leggett's borrowed employee.

The undisputed evidence shows that Sanchez was treated as Pruett's employee before the injury, at the time of the injury and after the accident, not only by Leggett and Pruett but also by Leggett's and Pruett's insurance carrier as well.There was no evidence that Leggett and Pruett had changed their agreement in any manner by virtue of the opposite employer having the right to control or the employee of receiving instructions and directions from the opposite employer.

'Q All right, sir.Now, Mr. Leggett, you don't know what a loaned servant is or didn't when you made this agreement with Mr. Pruitt.You didn't know what a loaned or temporary servant was; the law or theory behind it, did you?

A No.'

The specific contract settles the appellant's status as to whose general employee he was at the time of the injury.However, appellee contends that the factual consideration relating to the right of control, supervision and direction in the details of the work, are decisive.

In this respect appellee argues that the undisputed evidence in the case shows that Leggett had the right to control Sanchez in the details of performance of the work he was doing at the time of the injury and this right of control is the only test where the contract is silent in this regard; or at least there is a fact issue as to whether or not Leggett had the sole right to control...