Pacific Employers Ins. v. Liberty Mut. Ins.

HOLMES, Circuit Judge. This action arose, under the Workmen’s Compensation Law of Texas, Vernon’s Ann.Civ.St. art. 8306 et seq. out of a fatal injury to an employee, sustained when he attempted to crank the motor of a dragline. The appellees and cross-appellants are the widow and children of the deceased. The other appellee is the insurance carrier of the special employer, for whom the deceased was working at the time of his injury. Our decision is governed by the [2] Tex-as law with reference to the doctrine of loaned employees. The deceased, Oscar Walston, was a helper on the dragline, which was owned by Floyd Dixon and rented to the Knut-son Construction Company. The hiring agreement was oral, and merely provided for a rental o-'f $11 per hour for the machine fully operated, which means with everything necessary to its operation, including an oiler and operator, who were to be paid by Dixon. Walston was working under Prihoda, the driver of the machine, and was required to take orders from him. Except for the oiler and operator, Dixon had no representative on the job, and was not personally there himself except two or three times over a period of several weeks; and on each of these occasions he was present for only about an hour. The oiler’s duties generally were to keep the machinery cleaned, oiled, and greased; help fix it if necessary; and, specifically, to crank the motor while the operator remained in the cab. The special employer, Knutson Construction Company, had a • representative, named Sims, on the job at all times, who told Prihoda, the driver of the dragline, what to do and where to do it. Dixon leased the dragline, with operator and oiler, for a fixed sum per hour, and knew nothing of the details of the work. He was furnished with no plans or specifications for laying the sewer. Knutson’s representa-tative had both, and gave specific instructions as to the grade, width, depth, and direction, of the ditch to be dug, where to pile the dirt, and how to dig when quicksand was reached. The fatal accident occurred on June 10, 1947/ shortly after the lunch period. The dragline had been operating satisfactorily since digging was resumed after lunch; but the motor had stopped because the vacuum tank was out of gas, which caused a delay of fen or fifteen minutes. After gas had been put in the tank, however, and the operator was ready to resume digging, Prihoda, instructed Walston to crank the motor, and the fatal injury happened while Walston was attempting to crank it as instructed. This brings us to the crucial point in the case. If the motor was cranked to ascertain whether or not it was fixed and ready for operation, as the last step in repairing it, then Walston was working for Dixon, his general employer, at the time of his injury; but, if the motor was fixed, and the vacuum tank was filled with gas, and Wal-ston was instructed by Prihoda to crank the motor for the purpose of resuming operations with the dragline, i. e., in order to begin digging again, it is clear that the deceased met his death in the performance of services for his special employer, Knut-son Construction Company. Undoubtedly, Walston was at all times subject to some control by both his general and special employers; undoubtedly, his work in oiling, greasing, and repairing the machinery, filling the tank with gas, and similar tasks, was done for and on behalf of Dixon; but it is equally certain that, if he undertook to crank the motor for the operator to begin digging again, he was working for Knutson Construction Company. If from the undisputed facts, and all reasonable inferences deducible from them, fair and reasonable men might draw different conclusions as to the ultimate fact involved, then the issue was for the jury to determine ; otherwise, it was for the court. The majority of this court is inclined to the view that the undisputed evidence showed that Walston was serving the interest of Knutson Construction Company at the time of his injury and, as a matter of law, was in the latter’s special employ; but it is not necessary for us to go that far in our decision, since the issue was submitted to a jury, which returned a special verdict on the subject. At the close of the evidence in the court below, each insurance carrier asked for a directed verdict in its behalf on this issue, but the court denied both request's. In response to a special issue submitted by the court, the jury found that, at the time of the injury, Walston had been loaned by Dixon to Knutson Construction Company under such circumstances that he was an employee of that Company. Notwithstanding this, the count set aside the verdict of the jury, and entered judgment against Dixon’s insurance carrier instead of [3] against Knutson’s; 'and, in so doing, we think the court erred, because the following evidence of Prihoda was undisputed: “ * * * after oiling up ¡that afternoon, we had another mishap with the drag-line; the motor went dead, and we had to fix it, and we fixed it, and when he went to crank the motor again was when the accident happened. (R. 69.) * * * * * * “Q. Now, on the day of this accident, and just before Mr. Walston went around to crank the motor, when he got hurt, had you been digging in tbc ditch? A. Before he got hunt? “Q. Yes. A. Yes, sir. “Q. The lunch hour had been over and you had gone back to digging, is that right ? A. Yes, sir. “Q. Now, tell us what you were preparing to do when you wanted Walston to start the motor? A. Well, 1 had to prime the vacuum tank on the fuel system there. “The Court: Talk out louder, please, sir, so that the attorneys and the jury can hear you. A. And then I was preparing to choke the motor for him, when I got ready for him to start cranking. “Mr. Talbott: Q. And when you got the motor started, what were you going to do then? A. We were going to continue digging as we had done up to that time. “Q. Were Knutson’s men ready for you to go on digging? A. Yes. “Q. And you were planning to go on digging as you had been doing when the motor got started? I'S that right? A. Yes. “Q. Was that the reason that you were getting the motor started, so that you could dig? A. That is right. (R. 89, 90.) i{i sK Jfc Jjs “Q. Didn’t have any more trouble with it after you got started. Now, then, after this accident you did have to put some gasoline in the vacuum tank before the machine was started, is that right? A. After the accident? “Q. Before you could start the machine, you had to put some gasoline in the vacuum tank? A. I had the vacuum tank filled. “Q. On this occasion was it filled too ? A. I had the vacuum tank filled at the time when I told Mr. Walston that I was ready for him to start it, and after the accident I started the engine myself, and I did not have any more trouble with it the rest o:f that day. I don’t think we had any more trouble after that because I took ¡the vacuum tank in and we fixed it. ¡(R. 107, 108.) * * * * * .* “Q. Had you attempted to do any work on it after it stopped? A. Yes, sir; we checked and found out what was wrong, the reason why it had 'stopped, and found out that the vacuum tank was out of gas, and so we filled it up with gas and was going to start it up again. “Q. Mr. Prihoda, are you sure that the gas was put in before Mr. Walston attempted to crank this motor? A. Yes, sir. “Q. Instead of after? A. Yes, sir, it was before. “Q. It was before? A. Yes, sir, it was before. Mr. Kemper: I believe that is all.” (R. 112, 113.) We are not impressed with the argument that, because Walston’s principal duties were to keep the dragline in good running order, and because he was not directly engaged in digging ¡the trench, he was not employed by anyone but the owner of the machine. Such a narrow view of the evidence completely ignores the realities of the situation, and would practically nullify the application of the loaned-servant doctrine. We adhere to the view that the controlling question is not what was the nature and scope of Walston’s principal duties, but what use was being made of the machine and what special duty was being performed by him at the time of 'the fatal injury. We have noted that one of Walston’s special duties was to crank the machine while Prihoda sat in the cab. This was the initial and prerequisite step in digging with the dragline. In other words, as forcefully contended by appellant, it was just as if they were starting to dig in the morning, after the noon hour, or at any other time when digging was to be done. The motor had to be cranked, but cranking the motor was not [4] repairing if or maintaining the dragline. It was a part of the digging operation, just as stepping on the starter of a car is part of the operation of an automobile, and is not repair work.1 The argument that Walston spent much o'f his time sitting under 'shade trees, and doing nothing, is one that more profitably might have been made to the jury. The fact that both the majority and dissenting opinions quote from the testimony of Pri-hoda to support divergent views is further evidence that the court below did not err in submitting this issue to the jury. The statement that, at the time of the injury, Walston was attempting to crank a disabled motor was not an undisputed 'fact, but a very material issue before the jury. The argument that the dragline owner had the right to hire and fire Walston is not consistent with the unchallenged instruction of the court under special issue No. 7, that the test as to whose employee he was at the time inquired about was to be determined 'by whose work and whose business was being done at the time of the injury, and that it made no difference who had the right to hire and discharge the employee, oir who was paying his salary. The judgment appealed from should be, and hereby is, reversed, the verdict of the jury reinstated, and judgment entered here in accordance with the verdict. Reversed and rendered. Footnotes [1] Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94; Maryland Casualty Co. v. Donnelly, Tex.Civ.App., 50 S.W.2d 388; Texas Reciprocal Insurance Ass’n v. Latham, Tex.Civ.App., 72 S.W.2d 648; Steele v. Wells, Tex.Civ.App., 134 S.W.2d 377; Magnolia Petroleum Co. v. Francis, Tex.Civ.App., 169 S.W.2d 286; McFarland v. Dixie Machinery and Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 136 A. L.R. 516; Gaston v. Sharpe, 179 Tenn. 699, 168 S.W.2d 784; Shapiro v. City of . Winston-Salem, 212 N.C. 751, 194, S.E. 479; Wadford v. Gregory Chandler Co., 213 N.C. 802, 196 S.E. 815; Devaney v. Lawler Corporation, 101 Mont. 579, 56 P. 2d 746; Wylie-Stewart Machinery Co. v. Thomas, 192 Okl. 505, 137 P.2d 556; Restatement of the Law of Agency, Sec. 227. In the case of Magnolia Petroleum Company v. Francis, supra, the court held that control over some borrowed employee could be exercised by another borrowed employee. Restatement of the Law of Agency, Section 227, says: “The fact that a person is the general servant of one employer does not, as a matter of law, prevent him from becoming the special servant of another who may become liable for his acts. He may become the other’s servant as to some acts and not others.”