Twin City Fire Ins. Co. v. Dodd

• Decision Date: 25 March 1976
• Docket Number: No. 894,894
• Citation: 535 S.W.2d 416
• Parties: TWIN CITY FIRE INSURANCE COMPANY, Appellant, v. Bernard DODD, Appellee.
• Court: Texas Court of Appeals

Page 416

535 S.W.2d 416

TWIN CITY FIRE INSURANCE COMPANY, Appellant, v.Bernard DODD, Appellee.

No. 894.

Court of Civil Appeals of Texas Tyler.

March 25, 1976.

Rehearing Denied April 15, 1976.

William Drew Perkins, Lufkin, for appellant.

Larry Daves, Tyler, for appellee.

DUNAGAN, Chief Justice.

This is a workmen's compensation case.This suit was instituted by Bernard Dodd in the District Court of Nacogdoches County, Texas, against Twin City Fire Insurance Company and Texas Farm Products Company for an accidental injury received in the course and scope of his employment as an employee of the Lone Star Phosphate Company or a special or borrowed employee of Texas Farm Products Company.It is alleged that Bernard Dodd, while working on the job and at the premises of the Texas Farm Products Company, sustained serious injuries to his back, legs and body in general; further, that such injuries were a producing cause of total and permanent incapacity of the employee Dodd.

Based upon the verdict of the jury the trial court rendered judgment for the appellee, Bernard Dodd, and against the appellant, Twin City Fire Insurance Company, in the sum of $10,203.67.It is from this judgment that appellant has appealed to this court.

For convenience, Texas Farm Products Company will hereinafter be referred to as 'Texas Farm' and Lone Star Phosphate Company as 'Lone Star.'

This case involves a determination of whether Lone Star, insured by appellant, Twin City Fire Insurance Company, or Texas Farm, a nonsubscriber to the Workmen's Compensation Act, was the employer of appellee at the time of his injury.The jury found that Dodd was employed by Lone Star and that he had not been loaned to Texas Farm on the occasion in question.Appellant attacks the legal and factual sufficiency of the evidence to support the findings of the jury in response to special issues one, two and three.¹In deciding whether there is evidence to support the findings of the jury, here complained of, we view the evidence in its most favorable light in support of such findings, and look to the entire record in passing upon the insufficiency of the evidence and great weight and preponderance of the evidence points.In re King's Estate, 150 Tex. 662, 244 S.W.2d 660(1951).

Lone Star and Texas Farm are located on adjacent lots in Nacogdoches.They have common, although not identical, owners, directors and officers.Dodd was normally an employee of Lone Star but occasionally worked at Texas Farm.Dodd's contract was with Lone Star.When he worked on premises owned by Texas Farm he marked his time cards indicating that he was employed by Lone Star.On occasions Dodd would work at Texas Farm's manufacturing plant or feed mill, but he would continue to receive his payroll check from Lone Star.Texas Farm, however, would reimburse Lone Star for wages Dodd earned when working at Texas Farm.Apparently this was done to simplify the bookeeping.

On the day of his injury, Dodd began work at Lone Star and was later taken by Jerry McShan to the fertilizer plant of Texas Farm to remove some phosphate, where he was injured.The injury occurred while he was operating a payloader under the supervision of Jerry McShan.

Appellant argues that Dodd was injured when he was on the premises and under the supervision of Texas Farm and that Dodd's wages, medical expenses and some compensation were paid by Texas Farm.Appellant concludes that there was no evidence or insufficient evidence to support the jury's findings.

Dodd argues that the evidence was sufficient because he was under the supervision of, had contracted with, and was on the payroll of Lone Star.Dodd also contends that Lone Star was a subsidiary of Texas Farm.

The crucial question in this case is whether at the time of his injury Dodd was working in the course of his employment for his general employer, Lone Star, or whether at such time he was a borrowed employee of Texas Farm.

As additional facts to those above stated, the evidence shows that Lone Star operates a phosphate plant.Texas Farm, at its plant here involved, makes fertilizer.It buys phosphate from Lone Star.Phosphate is only one of the ingredients it uses to make fertilizer.Dodd was a general employee of Lone Star.However, Dodd, on occasions, worked at Texas Farm's fertilizer plant.On each of these occasions he knew he was working for Texas Farm.Dodd testified that at the time of his injury he knew he was working for Texas Farm; that Texas Farm had borrowed him; that he was borrowed by Jerry McShan and Clarence Riddle.The evidence shows that Riddle, McShan's father-in-law, was employed by Texas Farm in some capacity.Dodd also testified that at the time of his injury McShan was his supervisor and directed him what to do and how to do it.Mr . McShan testified that on the day Dodd was injured he(McShan) was employed by Texas Farm.Mr. Dement Beard, who at the time of the injury was Texas Farm's personnel director, also testified that at the time in question McShan was employed by Texas Farm.This testimony was undisputed except for the testimony of appellee, Bernard Dodd, that on the day of the accident Jerry McShan was working for Lone Star and he assumed that he was paid by Lone Star.Such testimony by Dodd was merely a conclusion on his part and had no probative force even though it was not objected to.His testimony that he was on Lone Star's time while doing work for Texas Farm at the time of the accident, and he so marked his time card, was also his conclusion.F. B. McIntire Equipment Company v. Henderson, 472 S.W.2d 566, 576(Tex.Civ.App.-Fort Worth1971, writ ref'd n.r.e.);Bradford v. Magnolia Pipe Line Co., 262 S.W.2d 242, 247--48(Tex.Civ.App.-Eastland 1953, n.w.h.);Latta v. Texas Employers' Ins. Ass'n., 243 S.W.2d 949, 951(Tex.Civ.App.-Austin1951, writ ref'd n.r.e.);Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, 99(1939);Webb v. Reynolds, 207 S.W. 914, 916(Tex.Comm.App.1919, jdgmt. adopted).The evidence shows that during a four-week period, which included the day of the accident in question, McShan was paid by Texas Farm.

The only factor which might indicate that Dodd was an employee of Lone Star is the fact he was carried on the payroll of Lone Star.This is not a controlling factor.Employers Casualty Company v. American Employers Insurance Company, 397 S.W.2d 292, 296(Tex.Civ.App.-Amarillo1965, writ ref'd n.r.e.);andMagnolia Petroleum Co. v. Francis, 169 S.W.2d 286(Tex.Civ.App.-Beaumont1943, writ ref'd).

It is undisputed, by any legal and competent evidence, that Texas Farm had the right or power to control and direct Dodd in the performance of the details of the work that he was performing at the very time in question; that at the time of his injury he was performing services solely for, and on the premises...