Court of Appeals of Texas, Houston (1st Dist.)

TEXAS EMPLOYMENT COMMISSION, Appellant

v.

Shirley Mae ROGERS, Appellee.

No. 01-94-00555-CV.

|

Aug. 17, 1995.

Before OLIVER-PARROTT, C.J., and HEDGES and ANDELL, JJ.

OPINION

OLIVER-PARROTT, Chief Justice.

*1 This is a premises liability case. Appellant Shirley Mae Rogers sued appellee Texas Employment Commission [hereinafter TEC] for damages resulting from an accident in which her heel went through carpeting and down a drain hole in a TEC leased building. The district court rendered judgment on the verdict for Rogers for $152,235.58 plus interest. TEC appeals in four points of error, asserting that the evidence is both legally and factually insufficient to support the judgment. We will affirm.

At the time of the accident, Rogers was a participant in a federally funded job training project administered by Harris County through the Harris County Private Industry Council. Rogers received federal funds from Harris County while she participated in the Job Training Partnership Act program.¹ Rogers was assigned to work and receive job training at TEC at the time of the accident.

A critical issue in the case was whether Rogers was acting as a borrowed employee of TEC. See Producers Chem. Co. v. McKay, 366 S.W.2d 220, 225-26 (Tex.1963) (defining borrowed employee). If she was TEC’s borrowed employee, then TEC would be immune from common-law liability because it was a subscriber under the Texas Workers’ Compensation Act.² See Carr v. Carroll Co., 646 S.W.2d 561, 562-63 (Tex.App.-Dallas 1982, writ ref’d n.r.e.). The jury found that Rogers was not acting as TEC’s borrowed employee and that TEC’s negligence caused Rogers’ injury.

In point of error one, TEC claims that the trial court erred in rendering judgment on this jury finding and in overruling TEC’s motion for new trial because the evidence proves as a matter of law that Rogers was TEC’s borrowed employee. When analyzing an “as a matter of law” point of error, we must first examine the record for evidence that supports the jury finding, while ignoring all evidence to the contrary. If there is no evidence to support the jury’s finding, we must then examine the entire record to see if the contrary proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

When no contract exists between two employers that specifies which employer has the right to control the employee, the right of control is determined

as an inference from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of the machine, etc.

Producers Chem. Co., 366 S.W.2d at 226. Because there is no such contract in this case, we must see if there is some evidence in the record to support the jury finding that Rogers was not TEC’s borrowed employee.

The record contains evidence that (1) Rogers was not paid by TEC, but by Harris County; (2) TEC did not keep its own evaluation and timesheets for JTPA participants, but merely completed the forms and forwarded them to the Harris County JTPA program; (3) the Harris County JTPA program made the ultimate decision whether to reassign a JTPA participant; and (4) TEC reported Rogers’ injury on a nonemployee injury report. Because we must ignore all evidence that favors TEC, we hold that some evidence exists that supports the jury finding that Rogers was not TEC’s borrowed employee. We, therefore, overrule TEC’s first point of error.

*2 In point of error two, TEC claims in the alternative that the trial court erred in overruling TEC’s motion for new trial because the jury’s finding is against the great weight and preponderance of the evidence. When we review a “great weight and preponderance” point of error, we must consider and weigh all the evidence, and we should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King’s Estate, 244 S.W.2d 660, 661 (Tex.1951).

Reviewing all the evidence, we conclude there is conflicting evidence to suggest Rogers’ status as a borrowed employee. The record contains evidence that a TEC supervisor directed Rogers’ work and that a Harris County Private Industry Council employee testified that TEC supervised Rogers. The question, however, is not whether we would decide as the jury did, but rather whether the jury’s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We hold that the verdict is not so contrary, and we overrule point of error two.

In point of error three, TEC claims that the trial court erred in overruling TEC’s motion for new trial because there is no evidence to support the jury’s finding of Rogers’ medical expenses because Rogers did not prove that her medical expenses were both reasonable and necessary. See Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377, 382-83 (Tex.1956); Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex.App.-Houston [1st Dist.] 1984), writ ref’d n.r.e. per curiam, 696 S.W.2d 558 (Tex.1985); Kulms v. Jenkins, 557 S.W.2d 149, 154 (Tex.Civ.App.-Amarillo 1977, writ ref’d n.r.e.). Here TEC is attacking an adverse jury finding on which Rogers had the burden of proof. When analyzing a “no evidence” point of error, we must consider only the evidence and inferences tending to support the jury finding and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

At trial, Rogers played the video deposition of her doctor. He testified that he had reviewed Rogers’ medical bills and that in his opinion, Rogers’ medical treatment and costs were reasonable and necessary as the result of the injuries she sustained. Rogers later offered the medical bills that were exhibits to the deposition into evidence at the trial. TEC objected; however, the trial court admitted the bills into evidence. Because we must ignore all evidence and inferences that favor TEC, we hold there is evidence that supports the jury finding of Rogers’ reasonable and necessary medical expenses. We overrule TEC’s third point of error.

In point of error four, TEC claims in the alternative that the trial court erred in overruling TEC’s motion for new trial because the jury’s finding is factually insufficient. We review a “factual sufficiency” point of error using the same test for a “great weight and preponderance” point of error. Cain, 709 S.W.2d at 176; In re King’s Estate, 244 S.W.2d at 661. Reviewing all the evidence, we hold that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule point of error four.

*3 We affirm the judgment of the district court.

	Footnotes
1		See Job Training Partnership Act, 29 U.S.C.S. §§ 1501-1791h (Law.Co-op.1990 & Supp.1995) [hereinafter JTPA].
2		Texas Workers’ Compensation Act, 71st Leg., 2d C.S., ch. 1, § 4.01(a), 1989 Tex.Gen.Laws 1, 32, repealed by Labor Code, 73d Leg., R.S., ch. 269, § 5(2), 1993 Tex.Gen.Laws 987, 1273 (currently codified as Tex.Lab.Code Ann. § 408.001(a) (Vernon 1995)).