Summary
stating that court had serious doubts that work ticket was a contract and that it assigned the right to control to one of the parties but stating that court need not address these issues to affirm the trial court's judgment and affirming on a different basis
Summary of this case from Mosqueda v. G & H Diversified Mfg., Inc.Opinion
No. 09-03-353 CV
Submitted on May 13, 2004.
Opinion Delivered June 17, 2004.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 01-10-06299-CV.
Charles L. Cotton, Cotton Farrell, P.C., Houston, TX, for appellant.
Rayborn C. Johnson, Montgomery, TX, Ronald E. Tigner, Preis, Kraft Roy, Houston, TX, Joshua W. Mermis, Preis, Kraft Roy, Houston, TX, for appellee.
Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
MEMORANDUM OPINION
John E. Cannan sued Absolute Demolition, Inc. for injuries sustained while working at Absolute's work site. The jury found both Cannan (40%) and Absolute (60%) negligent, found damages of $961,000 and found Cannan was acting as a borrowed employee of Absolute, resulting in a take-nothing judgment in favor of Absolute. Cannan alleges there was no evidence or insufficient evidence to support the jury finding of "borrowed servant."
Cannan was the employee of Labor Ready, Inc., a temporary labor service and was assigned by Labor Ready to a demolition project run by Absolute. This assignment was through a "Work Ticket." Cannan urges the pre-printed conditions on the back of the "Work Ticket" constituted a contract wherein Labor Ready retained the right of control over Cannan, therefore, Cannan could not be the borrowed servant of Absolute.
While we have serious doubts that the work ticket constitutes a contract and even more serious doubts that the language on the work ticket retains the right of control in Labor Ready, we need not resolve those doubts to determine this case. Even if a contract does exist between two employers providing that one shall have the right of control, it is a factor to be considered, but is not controlling. Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541 (Tex. 2002). Moreover, control of all the details of the work is not required for an employee to become the borrowed servant of another employer. Wingfoot Enterprises, Inc. v. Alvarado, 111 S.W.3d 134, 146 (Tex. 2003).
There is ample evidence from Absolute's president, superintendent and foreman that Absolute disregarded the preprinted conditions and did in fact control and direct the work of Cannan, including the work which caused his injury. All the testimony revealed that Cannan was only told to report to the Absolute site by Labor Ready. After that, all the control and supervision was provided by Absolute.
Utilizing the appropriate standards for reviewing no evidence and insufficient evidence we overrule both of Cannan's arguments. The judgment is affirmed.