(dissenting in part and concurring in part).
I concur in the view of the majority that the case should be reversed for the reasons set out in the majority opinion, but my study of the evidence convinces me that there is no dispute in the evidence that the defendant had the right to the supervision, direction, and control of the deceased, and that under the Workmen’s Compensation Statute of Texas, and decisions of the State of Texas, and under the well-known borrowed servant rule, Elmer O’Neal Amacker became and was the special employee of the defendant and, therefore, the right of recovery is measured exclusively by the Workmen’s Compensation Statute of Texas. The only testimony in the record which suggests a contrary conclusion does not, in law, justify such conclusion. It is argued by the appellees that the testimony of A. L. Rhodes, the foreman of the defendant, was to the effect that the defendant did not supervise and control the work of the deceased. It may be conceded that the witness Rhodes denied that he actually supervised the work of Amacker, but the test is not actual supervision but the right to control and supervise. Furthermore, the first question asked Mr. Rhodes on this subject was:
“Q. Did you do anything other than supervise the work that was being done? (Italics supplied.) A. No.
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“Q. Did you attempt to exercise control over Mr. Amacker as to how his work was being performed? A. No.
“Q. You didn’t? A. No.”
Further in Mr. Rhodes’ testimony, he stated: “Gibbins & Heasley sent me a crew to work under me.” (Italics added.)
Again:
“Q. Did you do anything except supervise the work that was being done ? (Italics added.) A. No.”
This testimony, considered in the most favorable light to the appellees, is nothing more than a denial by Rhodes that he actually did direct and supervise the work of the deceased, but it is submitted that his answers to the questions were as to whether he did anything other than supervise the work, and certainly did not evoke evidence that he had no right of control and supervision. This testimony of the witness Rhodes is insufficient to raise a question of fact as to the right to supervise and control. Furthermore, this court held, in its first opinion, that Amacker zvas under the supervision and control of the defendant. No new evidence was put into the record on the second trial to show the contrary, and in that particular, at least, the former decision of this court was correct.
The evidence as to the actual contract between Skelly Oil Company and Gibbins & Heasley, Inc., is very meager, but it appears that Gibbins & Heasley, Inc., had on other occasions furnished employees to the defendant for similar work, and that on the occasion in question Gibbins & Heasley, Inc., was called upon by the defendant to furnish two men for the purpose of cleaning out the tank. Rhodes, the foreman for the defendant, testified that Gibbins & Heasley, Inc., sent a crew to work under him. Hamon V. Price, one of the Gibbins & Heasley men who worked with Amacker on the first day in cleaning out the tanks, testified that the job was done “on a roustabout scale”. The term “roustabout scale” is not explained, but it evidently had reference to a scale of wages for roustabouts, of which Amacker was one, and doubtless had reference to the hourly rate of pay for roustabouts in that vicinity. I interpret the record to reveal that Amacker and his co-worker were being compensated on an hourly basis, and that their compensation was paid by their regular employer, Gibbins & Heasley, Inc., but the Texas courts have uniformly held that the question of who pays the wages *24under the borrowed servant rule is of minor importance, but that the all-important question is the right to direct, supervise, and control the servant in doing the work. 'The witnesses on the subject all placed the right of control' and supervision in the defendant, and the plaintiffs, in paragraph 3 of their amended complaint, make the following allegation: “Plaintiffs allege that the Defendant, Skelly Oil Company, had full control and charge of said Elmer O’Neal Amacker * *
It seems to me that where the plaintiffs allege that the defendant had full control and charge of the workmen, and where the proof shows that fact conclusively, and since the right to control and supervise is the test of the relationship of master and servant, it is hardly open to argument that such a relationship exists. Such being the case, the Workmen’s Compensation Law governs and the plaintiffs had no right of action at common law. It is my view, therefore, that the motion of the defendant for a directed verdict should have been sustained.