Francis v. Johnson

777 S.W.2d 462, 1989 Tex. App. LEXIS 2207, 1989 WL 99517
CourtCourt of Appeals of Texas
DecidedAugust 30, 1989
DocketNo. 08-89-00091-CV
StatusPublished
Cited by3 cases

This text of 777 S.W.2d 462 (Francis v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francis v. Johnson, 777 S.W.2d 462, 1989 Tex. App. LEXIS 2207, 1989 WL 99517 (Tex. Ct. App. 1989).

Opinion

OPINION

KOEHLER, Justice.

The Appellant, William S.W. Francis (“Francis”), sued the Appellees, Ramon Garcia (“Garcia”), and Johnny Johnson, d/b/a Johnny Johnson Backhoe Service (“Johnson”), for injuries received while working for his employer, Continental Mechanical Corporation (“Continental”) resulting from the alleged negligence of Garcia and his employer, Johnson. Francis brings this appeal from orders granting the respective motions for summary judgment of Johnson and Garcia. We affirm.

Continental had the plumbing subcontract on the Roberts addition to Baylor Hospital in Dallas. As a part of its contractual obligation, Continental was required to install an underground sanitary or sewer line and a storm line from the building to the street where they would be tied into the city lines. Continental called Johnson and ordered a backhoe and an operator for the purpose of digging the necessary trench. The backhoe was delivered to the job site and Garcia was sent by Johnson to operate the machinery. As a preliminary task, the Continental employees dug two holes so that they could set up their instrument and shoot the elevations from the building to the property line in order to determine the amount of “fall” that had to be put into the line from point to point. The hole near the street was about six feet deep and was wider than normal, approximately four feet wide, because they had been searching for the city lines. According to Continental’s job superintendent, he had directly and through his foreman instructed Garcia, a skilled operator, to backfill the hole before trenching through it to avoid the possibility of the sides of the hole caving in on his men while they were in the trench installing the pipe. Garcia commenced digging the trench at the building and had completed it at the street end. He had apparently trenched through the hole without having backfilled as he had been instructed, by “breaching the hole” through the use of the outriggers on the backhoe, thus loosening the material around the hole. He had pulled the backhoe out of the trench and parked by the side of the hole or out on the street when the side of the hole caved in on Francis and another Continental employee, who were working in the hole, injuring them.

In his petition, Francis had alleged that the occurrence resulting in his injuries had been caused by Garcia’s negligent acts and omissions and that at the time of the occurrence, Garcia was the employee of Johnson and was acting within the scope of his employment. Although the take nothing summary judgments were obtained at different times, Garcia having initially suffered a default judgment against him and having thereafter been granted a new trial, the grounds for the two motions for summary judgments were essentially the same: that at the time of.the occurrence in question, Garcia was the special or borrowed employee of Continental and, therefore, Francis’ cause of action would not lie against Johnson under the theory of Re-spondeat Superior, or against Garcia as a co-employee, under the exclusive remedy section (Section 3) of Article 8306 of the Workers’ Compensation Act.

Francis brings three points of error, all to the effect that the trial court erred in granting the two summary judgments because Johnson and Garcia failed in their summary judgment proof to establish as a [464]*464matter of law that Garcia was the borrowed employee of Continental and there remains a fact issue on that question.

When the validity of a summary judgment, granted on a defendant’s motion, is in issue, the question on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Griffin v. Rowden, 654 S.W.2d 435 (Tex.1983). The burden is on the movant to establish the absence of a genuine issue of a material fact. In determining whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985). Thus, the burden in this case was and is on Johnson and Garcia to establish, on the basis of the summary judgment proof properly before the court, that there is no genuine issue on the question of whether or not Garcia at the time of the occurrence was the special or borrowed employee of Continental.

Attached to Johnson’s original Motion for Summary Judgment were affidavits of Garcia and Johnson. Hearing on this motion was held on April 2, 1987. Leave, having been obtained from the court, Johnson filed a trial amendment to the motion on April 13, 1987, by means of which he placed his reliance not only on the aforementioned affidavits but also on the affidavit of Jackie Roberts, an employee of Continental, and the depositions of Roberts, Garcia and Johnson, which had been taken prior to the summary judgment hearing and were apparently considered by the trial court without objection.

According to Johnson’s deposition, if somebody needing a backhoe or other similar piece of equipment called, Johnson would send out the requested machinery with a properly trained operator, for both of which he made a standard charge. He would then pay the operator once a week for the number of hours he put in. In this case, someone with Continental called Johnson’s dispatcher and requested that Garcia, along with a backhoe, be sent to the Baylor Hospital job. There was no written contract between Johnson and Continental, and he personally did not go on the job or exercise control over Garcia’s work and performance.

The critical inquiry is whether Garcia was a special or loaned employee of Continental during the time Francis was injured, and in order to answer that inquiry, it is necessary to determine which employer had the right of control over Garcia’s performance of his services. J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 333 (Tex.1968); Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94 (1946). In Robinson, Justice Greenhill quoted from Producers Chemical Company v. McKay, 366 S.W.2d 220, 225, (Tex.1963), wherein Chief Justice Calvert said:

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.

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Cite This Page — Counsel Stack

Bluebook (online)
777 S.W.2d 462, 1989 Tex. App. LEXIS 2207, 1989 WL 99517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francis-v-johnson-texapp-1989.