Court of Appeals of Texas, San Antonio.
Minerva GARZA, Appellant,
v.
ROWAN COMPANIES, INC.; Rowan International, Inc.; Rowan Marine Drilling, Inc.; Rowandrill, Inc.; and Rowan Petroleum, Inc., Appellees.
No. 04-95-00679-CV.
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April 16, 1997.
HARDBERGER, Chief Justice, DUNCAN, J. and HILL, J.1.
AFFIRMED
HILL, J.
*1 Minerva Garza appeals from a take-nothing judgment in this slip-and-fall case. Trial was to the jury, which found that Garza was employed by Rowan Companies, Inc. (Rowan), appellee, at the time of her fall. That finding resulted in the take-nothing judgment rendered in accordance with the Texas Workers’ Compensation Act, because Rowan was a subscriber. She contends in three points of error that there was no evidence to support the jury’s finding that she was an employee of Rowan at the time of her fall; that the evidence is factually insufficient to support the finding; and that the submission of this question, coupled with the submission of the borrowed-servant doctrine, constituted a comment on the weight of the evidence.
We affirm because the evidence is both legally and factually sufficient to support the jury’s verdict and because we see nothing improper in the jury questions concerning the identity of Garza’s employer.
Garza contends in point of error number one that there is no evidence to support the jury’s findings that she was Rowan’s employee at the time of her fall. When reviewing such a point of error, we must consider only the evidence and reasonable inferences drawn therefrom that support the court’s finding, disregarding all evidence and inferences to the contrary. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). We must then determine whether more than a scintilla of evidence exists to support the finding in question. Id.
Evidence was presented that Garza was an employee of Rowan, working as a housekeeper. The evidence showed that she worked at Las Pitas, a hunting camp used by Rowan to entertain its customers. She was supervised in her work by Mike Stanfield, a Rowan employee. Additionally, evidence was presented that Garza’s paychecks were written on the Las Pitas operating account and that such account was owned by Rowan. Particularly, the evidence showed that Rowan funded all checks that were written on the account. Finally, evidence was presented showing that Mike Stanfield’s wife, Suzanne, kept the books for Las Pitas and that she was also an employee of Rowan. The workers’ compensation policy that covered Garza was paid for by Rowan. We hold that there is evidence that Garza was an employee of Rowan.
Garza argues in point of error number two that the evidence is factually insufficient to support the jury’s finding that she was an employee of Rowan, and that such an answer was against the great weight and preponderance of the evidence. In deciding such a point of error, we are required to review all of the evidence, including any evidence contrary to the jury finding, and decide whether the judgment is so against the great weight and preponderance of the evidence as to be unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951); Pontiac v. Elliott, 775 S.W.2d 395, 398 (Tex.App.-Houston [1st Dist.] 1989, writ denied).
*2 In addition to the evidence that we have previously related, there was evidence that Garza’s W-2 forms reflected that she was employed by Mike Stanfield contractors, and that Mike Stanfield was shown as her employer in official records filed with the Texas Employment Commission. There was evidence that Mike Stanfield was paid directly by Rowan, while everyone else, including his wife, was paid from the Las Pitas account. Considering all of the evidence, we do not find that the judgment is so against the great weight and preponderance of the evidence as to be unjust.
Garza relies upon three cases in contending that the evidence is insufficient to establish that Garza was an employee of Rowan-Exxon Corp. v. Perez, 842 S.W.2d 629 (Tex.1992); J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 330-31 (Tex.1968), overruled by Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); and Producers Chemical Company v. McKay, 366 S.W.2d 220, 226 (Tex.1963). All three of these cases stand for the proposition that in the case of an employee of one employer who is engaged in doing work for another employer, whether that employee becomes a borrowed employee of the other employer depends upon whether the other employer has the right to control the details of the employee’s work. Garza contends that there is no evidence that Rowan had the right to control the details of her work. Garza was working at the Rowan hunting camp. She was supervised by a Rowan employee and paid with funds furnished by Rowan. We do not believe that under these circumstances it is unreasonable to infer that Rowan had the right to control the details of her work. We overrule points of error one and two.
Garza asserts in point of error number three that:
THE SUBMISSION OF SPECIAL ISSUE NO. 4, ESPECIALLY WHEN COUPLED WITH THE SUBMISSION OF THE BORROWED SERVANT DOCTRINE BEHIND IT IN SPECIAL ISSUE NO. 5, WAS INTENDED TO CAUSE AND PROBABLY DID CAUSE THE RENDITION OF AN IMPROPER VERDICT SINCE IT AMOUNTED TO A COMMENT ON THE WEIGHT OF THE EVIDENCE, CREATED AN IMPERMISSIBLE NUDGE OF THE JURY TO PRESUPPOSE THAT THE EVIDENCE PROPERLY RAISED THE EMPLOYMENT STATUS OF APPELLANT, MINERVA GARZA, AT THE TIME OF THE ACCIDENT IN QUESTION SO AS TO CONSIDER THAT HER EMPLOYER WAS ROWAN COMPANIES, INC. OR THAT THERE WAS AN EQUAL AMOUNT OF EVIDENCE TO THAT EFFECT AND BECAUSE IT ALSO NUDGED THE JURY INTO BELIEVING THAT APPELLANT, MINERVA GARZA, DID NOT HAVE AN ESTABLISHED GENERAL EMPLOYER FROM WHO SHE COULD HAVE BEEN A BORROWED SERVANT.
It is difficult to ascertain from the point of error the exact nature of Garza’s complaint. In her argument under this point, Garza merely states that the issue was not properly presented since it allowed the jury to consider, “as if the facts were equal,” her employment status as being between Stanfield or Rowan, and that the facts of the case did not raise or warrant the employment issue to be submitted, especially “in the generic form it was submitted.”
*3 We have determined that the evidence is sufficient to support the jury’s finding that Garza was an employee of Rowan at the time of her fall. If, as Garza suggests, there is also evidence that she was employed by Stanfield instead of Rowan, we know of no error in asking the jury who Garza’s employer was at that time.
Garza relies on two cases in her brief discussion in this point of error-Alaniz v. Jones and Neuse, 907 S.W.2d 450 (Tex.1995) and Lemos v. Montez, 680 S.W.2d 798 (Tex.1984). The first case has to do only with preservation of error, not the merits of Garza’s complaint. In Lemos, the Texas Supreme Court disapproved of a question submitted in such a way that the plaintiff was required to prove unavoidable accident, an inferential rebuttal issue. Lemos, 680 S.W.2d at 800-01. We see no relevance of that opinion to the jury question before us because it does not involve the submission of an inferential rebuttal issue. Garza does not in her brief explain the relevance. We overrule point of error number three.
The judgment is affirmed.
Footnotes |
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| 1 | Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov’t Code Ann. § 74.003 (Vernon 1988 & Supp.1997). | |