Aluminum Co. of America v. Commercial Contracting Co. of San Antonio

438 S.W.2d 853, 1968 Tex. App. LEXIS 2147

• Court: Court of Appeals of Texas
• Decided: August 8, 1968
• Docket: No. 376
• Status: Published

Opinions

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that appellant Aluminum Company of America, sometimes hereafter “Alcoa”, plaintiff below, take nothing against Commercial Contracting Company of San Antonio, Inc., sometimes hereafter “Commercial”, defendant below.

Appellant asserts six points of error, the first four of which contend that Aloca was and is entitled to judgment as a matter of law. We have concluded that these points are without merit and should be overruled. In view of such holding, points five and six are immaterial to disposition of the case.

On or about Dec. 11, 1964 the parties entered into a written contract covering certain improvements to be constructed by Commercial to Alcoa’s plant located at Port Comfort, Texas. Commercial subcontracted with John Bright and Associates, sometimes hereafter “Bright,” for certain pipe-fitting work to be performed under its contract with Alcoa. One provision of the contract between Alcoa and Commercial read as follows:

“The Contractor (Commercial) shall save and hold the Owner (Alcoa) harmless from and against all liability, claims and demands on account of personal injuries (including death), or property loss, or damage to others (including the Contractor and employees and invitees of the Owner and of the Contractor) arising out of or in any manner connected with the performance of this contract, and caused by the negligent or wilful act or omission to act of the Contractor, a subcontractor or materialman hereunder, or the employees or invitees of any of them, and the Contractor shall at his own expense defend any and all actions based thereon and shall pay all charges of attorneys and all costs and other expenses arising therefrom.”

On February 8, 1965, Bobby G. Holloway suffered injuries at Alcoa’s plant site while working for Bright. Holloway settled his claim for workmen’s compensation and then filed suit against Alcoa in the State Court. The suit was removed to the U. S. District Court at Victoria, Texas where Alcoa paid Holloway $6,000.00 in settlement. Alcoa then brought the instant suit against Commercial upon the above-quoted provision of the contract to recover, the amount of $6,-000.00 plus $1,247.06 expenses and attorneys fees for defending and settling Holloway’s suit and $2,469.69 as attorneys fees in the instant case.

On the trial of this case Bobby G. Holloway and George C. Beeler, an Alcoa employee, testified concerning the accident in which Holloway was injured. Holloway testified in substance as follows: On February 8, 1965, he was working on an eight inch pipeline in the Alcoa plant and particularly was installing a flange which connects two joints of pipe. When he began work the line was empty of fluid. The line was suddenly activated and liquid began to flow through the uncoupled flange striking his face and body and causing him to fall and injure his back. George C. Beeler testified in substance as follows: He is a department foreman for Alcoa and was present when Holloway was injured on February 8, 1965. Mr. Leonard Stringer, who was Bright’s superintendent or foreman over the pipefitters had made arrangements with Beeler to shut down the line in question while the work was being done. On the morning of Holloway’s accident Stringer advised Beeler that he was ready to tie in the line and to cut off the flow. In order to accomplish this a pump located at a lower level had to be turned off. Beeler instructed the shift foreman and the operator to shut the pump down, drain it out and stand by it, and that instructions would be given when the work was finished to restart the pump. The two Alcoa employees most directly involved were Mr. Williams, the shift foreman, and Mr. Ko-lacny, the operator in charge of the equipment. Beeler advised Stringer that the pump was cut off and the line bled. Beeler said that Stringer was present when this was done. Holloway and another Bright employee began their work. There was some difficulty in getting the pipes or joint lined up and in placing and tightening bolts. Holloway and the other worker were taking the bolts apart and separating the joint when the accident happened. Without warning, the pump was turned on and a heavy spray or sheet of liquid, a soda solution, came out of the opening where the Bright employees were working. Holloway attempted to leave, grabbed for a ladder and missed it, held onto a line, slid down a beam, lost his grasp, hit a handrail and fell to the floor. ■ Those present assisted Holloway at the scene and he was then taken in an ambulance to the hospital. Beeler said he was waiting for the work to be finished by the Bright employees, after which the pump was to be turned on. However, there was some misunderstanding among the other Alcoa employees, and the shift foreman signaled Kolacny to turn on the pump, which was done. The pump was turned off shortly thereafter by Kolacny when it was discovered that solution was coming down through the grating. Beeler said there was a break down in communications among the Alcoa employees, and that his instructions to them had been not to turn on the pump until he, Beeler, told them to do so. Beeler said that the pump was turned on “because somebody from Alcoa misunderstood some instructions.”

The parties entered into a written stipulation in which they agreed

1. That the settlement between Aluminum Company of America and Bobby G. Holloway was a reasonable settlement under all of the circumstances existing in respect thereto.

2. That said settlement was a bona fide settlement.

3. That the expenses incurred by Aluminum Company of America in defending the claim and lawsuit asserted against it by Bobby G. Holloway was reasonable, and necessarily incurred.

4. That upon the occasion of the accidental injury to Bobby Holloway, that Adolph Kolacny was negligent in turning on the pump before the work was completed, and that such negligence was a proximate cause of the injuries to Bobby Holloway.

Alcoa’s basic contentions under its first four points are that Holloway’s injuries were proximately caused by the negligence of employees of Bright and also that one Adolph Kolacny, a general employee of Alcoa, was on the occasion of Holloway’s injury a loaned employee or servant of Bright, and was, therefore, an employee for whose negligence Commercial would be responsible to Alcoa under the indemnity clause of contract.

The trial court submitted eighteen special issues to the jury. Some were not answered because of conditional submission. Under the verdict there are no findings that any act, omission or negligence of the employees of Bright caused Holloway’s injuries. The jury found that the Alcoa employees were not borrowed employees of Bright on the occasion in question.

In view of the jury verdict Alcoa’s position here is necessarily that all fact issues essential to its cause of action were conclusively established in its favor and that it is entitled to recover as a matter of law. Alcoa says that the trial court should have disregarded the jury answers to special issues 4, 5, 7, 8, 13, 16 and 17. The jury answer to special issue no. 4 was in effect that Bright was not negligent in failing to provide a proper wrench for Holloway on the occasion in question. Issue no. 5, involving proximate cause, was conditionally submitted and unanswered. The jury answer to special issue no. 7 was in effect that Bright was not negligent in failing to provide a scaffold for Holloway. Issue no. 8, involving proximate cause, was not answered because it was conditionally submitted. The jury answer to special issue no. 13 was in effect that Holloway’s own negligence in the time he took to make up a piping joint was not a proximate cause of his injuries. The jury answer to special issue no.' 16 was in effect that Holloway’s own negligence in the putting of bolts at the top of a joint was not a proximate cause of his injuries. The jury answer to special issue no. 17 was in substance that on the occasion in question George Beeler and the Alcoa employees concerned with the operation of the caustic soda line and pump in question were not borrowed employees of the subcontracting firm of John Bright and Associates working under the direction of the John Bright foreman, Leonard Stringer.

We overrule appellant’s first four points. The evidence does not conclusively establish that the acts or omissions of the employees of Bright constituted negligence or the proximate cause of Holloway’s injuries. The evidence is legally and factually sufficient to support the jury findings which were unfavorable to Alcoa on such isses. Alcoa’s own evidence, particularly the testimony of George C. Beeler, strongly tends to establish that the negligence which proximately caused Holloway’s injuries (for which Alcoa paid $6,-000.00 in settlement) was on the part of employees of Alcoa and was not by employees of Bright. The jury was authorized to answer the special issues as it did and there is no basis in the record for disregarding the findings on issues 4, 5, 7, 8, 13 and 16.

The evidence also does not conclusively establish that the employees of Alcoa were the borrowed servants of Bright. We sustain appellee’s contention under its counterpoint one that there was at least a fact issue in such respect to be resolved by the jury. The finding of the jury that such Alcoa employees were not borrowed servants of Bright is amply supported by the evidence, and the jury answer to special issue no. 17 cannot be set aside. The jury could have believed from the evidence that the Alcoa employees deactivated the line and turned off the pump in question so that the Bright employees would have a safe place in which to work; that the Alcoa employees, including Beeler and Kolacny, were not performing Bright’s work, but were standing by while it was being done by Bright employees; and that the details of shutting down the pump and line or restarting and reactivating the same were not under the control of Bright or his employees.

The definition given in connection with special issue no. 17 (which the jury answered in effect that the Alcoa employees were not borrowed servants of Bright working under the direction of its foreman Stringer) reads as follows:

“In connection with the foregoing Special Issue, you are instructed that by the term ‘borrowed employee’ means an employee of one employer who is tempora-ily loaned to another employer, in order to allow the borrowing employer to fulfill or complete the borrowing employer’s obligations or work, and which borrowing employer has the right to control and direct the borrowed employee’s activity, not merely as to the result to be obtained, but also as to the manner and method in which the work is to be done.”

In Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.Sup.Ct.1963), the court held in part as follows:

“Whether general employees of one employer have, in a given situation, become special or borrowed employees of another employer is often a difficult question, particularly when employees are furnished with machinery by their general employer to accomplish part of a project or contract undertaken by another. Solution of the question rests in right of control of the manner in which the employees perform the services necessary to accomplishment of their ultimate obligation. If the general employees of one employer are placed under control of another employer in the manner of performing their 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. Restatement of the Law of Agency, Vol. 1, § 227 ; 35 Am.Jur., Master and Servant, 970, § 541; 57 C.J.S. Master and Servant § 566, pp. 284-291.”

A A ⅝ ⅜: ⅜ A

“ * * * Mere directions given to McDonald as to where to hook up, when to start and when to shut down the compressor in coordinating the work of all men and machinery on the project toward the ultimate object of unloading the hole does not raise the issue that right of control of McDonald in the manner of performing his work had been transferred from Producers to Canadian River. A A ⅜ JJ

On July 17, 1968 the Supreme Court of Texas handed down its decision in the case of J. A. Robinson Sons, Inc. v. Wigart, Tex., 431 S.W.2d 327. Robinson contended that it was not legally responsible to plaintiffs because Britain, its regular employee, had become the employee of Roman-Chase Company at the time of the accident there involved. The jury found that Britain was not such a borrowed employee. The Supreme Court overruled Robinson’s contention that Britain was a loaned employee as a matter of law. Among other authorities the court discussed McKay, and reiterated the holdings therein including the quotation first here-inabove set out. The judgment was reversed on other grounds relating to the charge of the court. This latest expression of the Supreme Court concerning the borrowed servant doctrine strongly supports appellee’s position here.

In connection with its contention that the Alcoa employees were borrowed servants of Bright appellant cites six cases. Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.Sup.Ct.1963); Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94 (Tex.Sup.Ct.1947); Insurors Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217 (Tex.Sup.Ct.1949); Magnolia Petroleum Co. v. Francis, 169 S.W.2d 286, (Tex.Civ.App., Beaumont, 1943, wr. ref.); Maryland Casualty Co. v. Donnelly, 50 S.W.2d 388 (Tex.Civ.App., Waco, 1932, wr. dism.); and McKinney v. Tromly, 386 S.W.2d 564, 12 A.L.R.3d 1011 (Tex.Civ.App., Tyler, 1964, wr. ref. n. r. e). The first three of these cases are cited or discussed in Robinson v. Wigert, supra. In Magnolia Petroleum Co. v. Francis, supra, it was undisputed that Magnolia had expressly loaned its general employees to its contractor. Maryland Casualty Co. v. Donnelly, supra, is cited for the proposition that the borrowed employee is entitled to compensation from the Workmen’s Compensation carrier for the borrowing employer. McKinney v. Tromly is cited for the rule that the borrowed employee can subject the borrowing employer to liability for his negligent actions. None of these cases lend support to appellant’s contention here. It is apparent that the jury could properly find that Bright did not have the right to control the activities of the Alcoa employees.

In view of the foregoing holdings, appellant’s points five and six which assert that Alcoa is entitled to attorneys fees in this case and that the trial court erred in rendering judgment for Commercial on the theory of laches, become immaterial to disposition of the case.

The judgment of the trial court is affirmed.