Lara v. Lile

828 S.W.2d 536, 1992 Tex. App. LEXIS 841, 1992 WL 63149

• Court: Court of Appeals of Texas
• Decided: April 2, 1992
• Docket: 13-91-084-CV
• Status: Published

Opinions

OPINION

DORSEY, Justice.

Celia A. Lara, individually and as next friend of Raul V. Lara, Jr., Roland Thomas Lara, and Lillia Maria Lara, minors, and on behalf of the Estate of the late Raul V. Lara, deceased, and on behalf of all those entitled to bring suit for his death, appeal a summary judgment entered in favor of Charles Lile, individually and d/b/a Raven Transport and Raven Supply in the Laras’ suit for wrongful death. The Laras contend by three points of error that the trial court erred in granting special exceptions and in granting the summary judgment. We reverse the trial court’s judgment.

Raul Lara was killed during the course and scope of his employment with Helden-fels Brothers, Inc., when a flatbed truck, then being driven by Heberto Hernandez, Lile’s employee, crushed him after he and a co-worker ducked under the flatbed portion of the truck to escape a sudden rainstorm on the job site.

The Laras brought suit against Helden-fels Brothers and Lile. They alleged in all of their petitions that Lile was the owner and operator in control of the truck that crushed Lara, and that Hernandez, without making the appropriate inspections and lookout, and contrary to instructions, moved the truck, causing fatal injuries to the decedent.

The Laras complain by their second point of error that the trial court erred in granting summary judgment for Lile because there were genuine issues of material fact regarding whether Lile’s driver was a borrowed servant of Heldenfels Brothers. Summary judgments are reviewed in accordance with the following standards: Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-59 (Tex.1985). 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 plaintiffs cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The summary judgment evidence in this case fails to conclusively prove that Hernandez was Heldenfels’ servant as a matter of law at the time he ran over Lara.

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

The borrowed servant doctrine is the linchpin of the defendant’s motion for summary judgment. The doctrine is predicated upon respondeat superior, the concept by which the master is vicariously liable for a servant’s torts committed in the course and scope of employment, without regard to the negligence of the master, whether during the supervision or hiring of the servant or otherwise.

The borrowed servant doctrine is implicated when the nominal or general employer loans or supplies an employee to another, who is termed the special employer. The negligence of the servant is attributed to the new, temporary, or special employer, and the original or general employer is exonerated. The doctrine shuns joint responsibility for the actions of the employee based upon the relative right to control the employee, and instead holds one master responsible for the tort of the employee, absolving the other. The issue is which master the servant was following at the time of the tortious act.²

The borrowed servant doctrine is discussed in Restatement (Second) of Agency § 227 (1958), “Servant Lent to Another Master.” Section 227(b) states that,

in the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it. (emphasis added).

The question is which employer has the right of control over the actions of the employee. Beginning with the inference that the general employer retains control, the inquiry goes to what control he has surrendered to the special employer.

Several factors enumerated in § 227(c) of the Restatement are helpful in analyzing the contrast between the general employer’s retention of right of control over his employee and the right of control of the special employer. These factors include situations in which (1) the machine utilized by the borrowing employer is both owned by the general employer and operated by the general’s employee; (2) the servant is expected to operate the machine in the way his general employer would expect while giving only the results called for by the borrower; (3) the general employer can substitute another employee at any time; (4) the servant is borrowed for merely a temporary period of time; (5) the employee has the skill of a specialist.

Moreover, the Restatement suggests that when the employee performs the acts directed by the borrowing employer, not only is the latter liable for having directed that action, but the general employer remains liable if the act fell within the scope of the employee’s general employment.

In reviewing the trial court’s granting of a motion for summary judgment, we review the evidence in the light most favorable to the non-movant. Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); Acker v. Texas Water Comm’n, 790 S.W.2d 299, 302 (Tex.1990); Nixon, 690 S.W.2d at 548-59. Here, the motion for summary judgment was based upon the defense that the employee, Hernandez, whose negligence was alleged to have caused the death of Lara, was not the employee of Lile, but had been loaned to Heldenfels. Lile had the burden of establishing as a matter of law that Hernandez was the employee of Heldenfels as special employer, rather than of Lile, as general employer. If there was a factual issue, the granting of the summary judgment was improper.

The undisputed facts are as follows: on August 1, 1988, the date of this accident, Heldenfels Construction Company was working on a road construction job site located in Flour Bluff, Texas, on Park Road 22. Charles Lile, appellee in this suit, owned Raven Transport and Raven Supply, which contracted with Heldenfels to deliver concrete boxes to be used in the construction of drainage culverts at the site. The boxes were transported and delivered to the job site, one at a time, on 40-foot flatbed trailers. The trailers were pulled by trucks (tractors) driven by Lile employees. The trailers and tractors were owned by Lile. The contract between Heldenfels and Lile/Raven did not address the relative rights of control over the truck drivers.

Once the Raven driver arrived at the job site, the driver spoke with Bennie Martinez, the Heldenfels overall supervisor, who told the Raven driver where to move his truck. Sonny Ham, the job superintendent, also directed the movement of the trucks, as did a Heldenfels’ spotter. Because three trucks delivered concrete boxes simultaneously, drivers often had to wait for instructions to move to a ditch area or wait to have their boxes unloaded. Raven drivers were told when and how to back up, move, and position their trucks; drivers were instructed to move at the command of a Heldenfels employee.

On the day of the accident, Heberto Hernandez, a Raven employee and truck driver, arrived at the job site shortly before 8:00 a.m. and spoke with Martinez, who directed him to the ditch site and later motioned him to back up to the ditch and park. A few minutes later, Hernandez moved the truck forward (it is disputed whether he moved on his own or was directed to do so), then was motioned to stop. Only after he stopped did he learn that he had run over appellant Lara.

Other matters are disputed, however, principally the amount of control Helden-fels and Raven exerted over Hernandez when this accident occurred.

Hernandez himself claimed that he was only allowed to move his truck on the job site as directed by the Heldenfels employees. He stated that at the time of the accident, Martinez told him to move forward. He said he did so, then stopped on command, thinking he was following Hel-denfels’ construction orders. Finally, Hernandez claimed that he did not honk the horn while moving his truck because no one instructed him to do so, and because he saw no reason for it.

Sonny Ham, Jr., Heldenfels’ superintendent, stated that Heldenfels could terminate Raven employees for unsatisfactory performance on the job site. Furthermore, both he and Martinez gave instructions to the Raven employees, the two most important of which were not to move unless directed to do so by a Heldenfels employee, and to sound the horn when moving. Ham claimed that Martinez directed all truck movement on the day of the accident, and that Hernandez moved forward because Martinez told him to do so, using both a verbal and a hand signal.

Benny Martinez, in his deposition, stated that all of the drivers attended an instructional meeting about an hour or two before this accident occurred. Martinez said he instructed Hernandez to move the truck forward.

Armando Escatiola, one of Lara’s coworkers and a fellow member of the unloading crew, testified that at the time of the accident, he was standing on Hernandez’s trailer. Escatiola stated that he did not see or hear anyone tell the driver of the truck to move. In fact, Escatiola testified that it was his job to tell Hernandez to move the truck, after he’d hooked cables to the culvert being unloaded and then dismounted the truck.

Finally, Charles Lile was not on the job site at the time of the accident. However, he testified about the overall control he had over his employees at the site. Lile stated that on the day of the accident, he relieved Hernandez of his duties and brought in another driver because Hernandez was so upset. He further stated that “my job is to get it [the concrete box] to the job site; when it gets there, the Heldenfels people tell him [Raven’s truck driver] what to do.” Lile stated, however, that the drivers do not necessarily move only at the direction of the Heldenfels people. Lile testified that his company is currently still working at the site and that he has not implemented any of his own procedural changes since the accident. His company’s drivers have since been asked by Heldenfels, however, to honk their horns when in motion on the site.

In J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 334 (Tex.1968), the Supreme Court held that determining who had the right of control over the tortfeasor employee at the time of the accident was the critical inquiry. In Wigart, the plaintiff was injured when a truck was being unloaded and the driver was a general employee of the trucking company, but was being directed in the unloading by agents of another. “Under these circumstances, right of control of the manner of operating the Equipment is the decisive factor, not control of the result to be accomplished by the equipment.” Id. at 334. The Court held that the applicability of the borrowed servant doctrine must be reviewed on a case-by-case basis, and that a fact issue existed in that case regarding which employer had the right of control over the operation of the truck at issue. Id. at 332. The evidence failed to establish that the driver was a borrowed servant as a matter of law.

In Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963), the Court held, “we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.” In that case, the special employment was brief, the general owned the machinery used on the site, and the employee was accountable solely to the general employer regarding operation of that machinery. There was no evidence that the special employer could have replaced the employee with an operator of its own choosing. The Court found that the special employee’s directions regarding merely when to start and when to stop in coordination with the other employees’ work on the ultimate project did not constitute control over the employee to the extent that the borrowed servant doctrine applied. Id. at 226.

In Cantrell v. Markham & Brown Co., 452 S.W.2d 940, 948 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.), the court held that the general employer must establish as a matter of law that his employee was the borrowed servant of another at the time of the tortious action. Id. at 948. The court applied Restatement §§ 227(b) & (c) and found that the general could not establish as a matter of law that his employee was a borrowed servant. Id. at 947-48. The court reiterated that it cannot be inferred that because the general employer has permitted a division of control, he has surrendered it. Id. at 948.

In the case at bar, several factors support the proposition that Lile remains liable for Hernandez’s tortious acts. Lile owned the truck driven by Hernandez at the time of this accident. Lile had a contract with Heldenfels to deliver culverts to the latter’s job site, and that contract did not address the right of control of Lile’s truck drivers. Although Lile’s employees followed Hel-denfels’ employees’ directions once they entered onto the job site, Lile continued to hold his employees on his payroll and to control them, particularly in their manner of operating and caring for his equipment. Finally, Lile could replace each employee assigned to deliver the culverts with another employee of his own choosing, and he did so after this accident occurred, replacing a badly shaken Hernandez with another Lile employee.

Because Lile was the movant for summary judgment in this case, he had the burden to rebut the inference that he retained control over Hernandez while he worked on the Heldenfels job site. Lile had to establish as a matter of law that Hernandez was Heldenfels’ borrowed servant when he rolled over Lara with his truck, killing him. There is no undisputed evidence of the surrender of the right of control of the driver to the degree that he became Heldenfels’ employee as a matter of law. Although liability could perhaps attach to Heldenfels for the failure to adequately exercise its right of control, as held in Pollard v. Missouri Pacific R.R. Co., 759 S.W.2d 670, 671 (Tex.1988), such an issue is not presented here. Appellants’ second point of error is sustained.

In their original and first amended original petitions, the Laras brought, in addition to an action for wrongful death, an action for violation of the Deceptive Trade Practices Act.³ Specifically, in Paragraph IV, the Laras alleged that:

The decedent was crushed beneath the truck receiving severe and ultimately mortal injuries and was conscious until the time of his death at Memorial Hospital in Nueces County, Texas, because of defects and breaches of express or implied warranties and/or representation pursuant to the Texas Deceptive Trade Practices Act (DTPA), Art. 17,46(b), subsection 1, 3, 5, 7, 9, 11, 12, 13, 23, and 17.50, express or implied warranties.

Lile specially excepted to the Laras’ first amended original pleading, contending that “Plaintiffs’ decedent was not a consumer under the DTPA and, therefore, as a matter of law, Plaintiffs are not entitled to recover under the DTPA.” The court granted the special exceptions. Subsequently, in accordance with the trial court’s order, the Laras filed an amended original petition which did not contain a DTPA cause of action.

The Laras contend by their third point of error that the trial court erred in granting Lile’s special exception, which required the Laras to strike the DTPA cause of action from their pleadings. Special exceptions are allowed by Tex.R.Civ. P. 91, which states that a special exception shall point out the insufficiency in the pleading excepted to. When the plaintiff's pleadings are insufficient because they fail to state a cause of action, the defendant may file special exceptions, specifically pointing out the defect or reason that the plaintiff’s claim is invalid. If the special exceptions are sustained, the plaintiff must then be given an opportunity to amend his pleadings before the case may be dismissed for failure to state a cause of action. See Texas Dep’t of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974); Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex.App.—Corpus Christi 1990, no writ); Tex.R.Civ. P. 90, 91.

In the present case, Lile properly used special exceptions to challenge the Laras’ pleading as failing to show that Raul Lara was a “consumer” for purposes of asserting the DTPA claim. The DTPA does not require a party to specifically refer to itself as a “consumer” when pleading its cause of action under the act. First Title Co. of Corpus Christi, Inc. v. Cook, 625 S.W.2d 814, 817 (Tex.Civ.App.—Fort Worth 1981, writ dism’d); Ridco, Inc. v. Sexton, 623 S.W.2d 792, 794-95 (Tex.Civ.App.—Fort Worth 1981, no writ). The complaining party need only allege facts showing that it fits within the act’s definition of “consumer.” Cook, 625 S.W.2d at 817; Sexton, 623 S.W.2d at 794-95. The issue on appeal, then, is whether the petition alleged facts sufficient to show that Lara was a “consumer” under the DTPA.

The DTPA defines a “consumer” generally as one “who seeks or acquires by purchase or lease, any goods or services.” Tex.Bus. & Com.Code Ann. § 17.45(4) (Vernon 1987). The plaintiff establishes standing as a consumer in terms of his relationship to the transaction, not by a contractual relationship with the defendant. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 368 (Tex.1987). Thus, the plaintiff may “acquire” goods or services that have been purchased by another for the plaintiff’s benefit. Specifically within the context of the employment relationship, our Supreme Court has held that an employee who was covered by a group insur-anee policy, which had been negotiated by his employer, was a “consumer” under the DTPA, because he “acquired” the goods or services of the insurer, even though he did not personally seek or purchase them. Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex.1985).

However, a person who has no relationship to the sales transaction may not be a consumer of the goods or services under the DTPA. In Rodriguez v. Ed Hicks Imports, 767 S.W.2d 187, 191 (Tex.App.—Corpus Christi 1989, no writ), for instance, we held that the passenger in an automobile which had been purchased by and for someone else was not a “consumer” under the DTPA for purposes of bringing an action against the seller for injuries caused by defects in the automobile. Thus, the goods or services provided to the employer by a third party must have some relationship to the employee in order for him to be considered a consumer under the DTPA. Specifically, in Munoz v. Gulf Oil Co., 732 S.W.2d 62, 66 (Tex.App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.), the Court denied consumer status to an employee with regard to a number of distributors of propane gas sold to the employer that caused injury to the employee.

The pertinent question is what was Lara to acquire or receive from Raven. The only service performed by the trucking firm was the transportation of culverts from one location to another. Raven’s trucking service was not sought, received or acquired by Lara, nor did it benefit Lara. Raven serviced Heldenfels in the course of its construction job. The only connection between Lara and Raven con- , sisted of both parties performing work for Heldenfels, Lara as an employee and Raven as a subcontractor.

Appellants argue that Lara had a relationship to the transaction between Helden-fels and Raven in that Lara and the other workers on the construction site “acquired” the benefits of a safe place to work from Raven; in other words, the Helden-fels workers acquired the benefits derived from Raven’s drivers being careful or safety-conscious while making deliveries to the job site. However, transportation was the primary service acquired; safety was incidental, albeit essential. The primary service acquired was not for the benefit of the Heldenfels employees, and was not received or acquired by them.

We hold that Lara did not acquire services from Raven, and accordingly was not a consumer of its services under the Deceptive Trade Practices Act. We overrule point of error three.

Finally, the Laras complain by their first point of error that the trial court erred in granting the motion for summary judgment because less than twenty-one days’ notice was given to them prior to the summary judgment hearing. On November 10, 1989, Lile filed a motion for summary judgment. On November 21, 1989, the Laras responded. A hearing on Lile’s motion for summary judgment was scheduled for December 4, 1989. The trial court held the hearing on November 29, 1989, however, less than 21 days after Lile filed his motion. Nonetheless, counsel for both Lile and the Laras appeared at the hearing.

When counsel appears on the day of the hearing, he may not challenge the summary judgment solely on the ground that he had no advance notice of the hearing date. Lofthus v. State, 572 S.W.2d 799, 800 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.). Moreover, to preserve a complaint for appellate review, a party must present a timely objection and obtain an adverse ruling. Daniel v. Esmaili, 761 S.W.2d 827, 829 (Tex.App.—Dallas 1988, no writ); Tex.R.App. P. 52(a). Conspicuously missing from the record is a statement of facts relating to the hearing on the motion for summary judgment. We cannot therefore determine from the record whether appellants did in fact object to the hearing date. Appellants’ complaint presents nothing for our review. The Laras’ first point of error is overruled. We reverse and remand for trial on the merits.

BISSETT, J., concurring and dissenting.

2 . The Biblical doctrine that one may only serve one master is followed in the law of the borrowed servant. However, unless the obligations to the masters conflict, so that the servant must choose between those obligations, the servant is usually fulfilling his obligations to both. Therefore, unless the servant has a dilemma regarding which master he should obey, there is no reason to exculpate one and bind the other vicariously for the sin of the servant. See Restatement (Second) of Agency § 227 (1958).

3 . Tex.Bus. & Com.Code Ann. §§ 17.41, et seq. (Vernon 1987).