(dissenting). Concededly:
1. The law of Texas governs this case, and provides that in the case of a borrowed servant the employer who had the right of supervision and control o-f the servant in the work that the servant was doing at the time of his injury is liable for the injured servant’s compensation.
2. The dragline and the deceased servant were Dixon’s.
3. Dixon was required to maintain, oil, and operate the dragline, and Knutson had neither duty nor authority in these respects.
4. Dixon was to receive $11 for each hour the dragline was in operation — nothing for the time it was not.
5. Knutson hired the dragline to dig ditches' — -not to fix vacuum tanks.
6. Dixon hired Walston to oil the drag-line as a part of the process of maintaining it, but not to operate the dragline or to dig ditches, and Walston did neither of these things. When the dragline was digging ditches for Knutson, Walston sat off under the shade of the trees, beyond the necessity or scope of Knutson’s control or right of control. (See testimony of Prihoda, footnote 3 below.)
7. When, for mechanical reasons, the dragline stopped, Walston’s services were called for, and he went promptly to work on Dixon’s dragline — not on Knutson’s ditches.
8. When the dragline stopped for repairs, so did Knutson’s pay to Dixon, but not so with Dixon’s pay to Walston.
9. When the injury occurred, the drag-line had been shut down for approximately fifteen minutes, due to trouble with the vacuum tank. The dragline earned nothing until it began to operate again. (The fifteen-minute shut-down should have, and *5doubtless did, cost Dixon one-fourth of $11.00, or $2.75.)
10. Walston was injured before the dragline went back to work. He probably was injured in an attempt to crank the motor, in which attempt he failed.2 (Prihoda, the only witness to the accident, and the operator of the dragline, cranked it after the oiler had been injured and sent to the first aid station in Houston.)
11. A dragline that is not cranked and not running is a dragline that is not digging, and when the dragline was not digging, neither it nor its crew was working for Knutson. But even if it had been digging, Walston would doubtless have been “plumb off the job somewheres” as Prihoda picturesquely expressed it. (See footnote 3.)
12. The facts are not in dispute or in issue, but only the law. In resumé, the following are the undisputed facts:
Dixon, the owner, rented his dragline to Knutson, the sewer contractor, and agreed: to furnish an operator and oiler; to maintain the dragline; to 'furnish the fuel; to excavate whenever and wherever directed by the contractor. For this he was to receive $11.00 an hour for each hour of operation of the dragline. The oiler, a regular employee of the driag1line owner, did not operate the dragline nor dig any ditches.3 His duties were to look after the oiling, cleaning, and maintenance of his employer’s machine. When, for some reason, in no wise attributable to the sewer contractor, the vacuum tank on the dragline failed to function, causing a shut-down of the drag-line for ten or fifteen minutes in which to check, find out what was wrong, and to remedy the trouble, this regular employee of Dixon went to work. In this work he fell off the motor and was hit on hi's head by the crank. He was doubtless making an effort to crank the motor when he was injured, nevertheless he did not start the motor and, it was not started until after the injured oiler had been sent to the aid station in the City of Houston. Thereafter *6Prihoda, the operator, cranked it and the excavation work for which the sewer contractor had hired the dragline was resumed.
The dragline ownef had the right to hire and fire the oiler and the operator. He also had the duty to pay them according to the total hours they worked — not according to the hours they worked for the sewer contractor. He also deducted social security and victory taxes from Walston’s pay.
These facts present only the legal question: “Who, under the law of Texas, was the employer of, and had the right to control, the oiler at the time he was injured?”
The Court below answered, in conformity to the decisions of the Texas courts, that he who had the right to direct and control him in the work that the servant was engaged in at the time of the injury was his employer.4 Knutson had no authority to direct Walston how to start the motor any more than he had the right to direct him what tree 'to sit under or what to do when he was “plumb off of the job somewheres”.
An attempt to crank the motor of a dragline is no more digging ditches than an attempt to crank an 'airplane motor is flying.
A dragline cannot dig merely because someone tried to crank its motor.
In view of the absence of any consent of Walston to become the employee of Knutson, in view of the undisputed testimony that his duties were wholly in connection with keeping the dragline in operating condition, and in view of the fact that he performed no services in Knutson’s operations, there seems to he no justification for the conclusion that Walston was ever a loaned servant. Although there is no evidence to that effect, nevertheless if it had been shown that on occasions he was about the business of Knutson, still neither the jury, the judge nor this Court could rightfully conclude that he was a loaned servant at the time of his injury merely because he attempted, and failed, to crank a disabled motor.
It seems clear to me that there was no question of fact involved under Special Issue No. 7 — but only a question of law which the Court below decided correctly.
I think that the judgment which the widow obtained against Pacific Employers Insurance Company was the proper judgment and that it should be affirmed.
Prihoda, the only witness as to the manner in which the accident probably occurred, testified:
“Q. Did you give Mr. Walston instructions to start cranking the machine? A. Yes, sir, I did; I told him that I was ready, and he didn’t start cranking it, and I heard him say something, but I didn’t know what he was referring to, and I waited a couple or three minutes, and he never had started to crank the engine, so I got off of the machine and went to see what happened, and when I got around the machine there was a couple of fellows who were aiding him; he had fell, and they were wiping his face and helping him up. * * * I asked him what happened, yes, sir.
“Q. And what did Mr. Walston tell you? A. He told me that he slipped and fell off of the machine and the crank fell and hit him.
“Q. lie told you that he slipped and fell off of the machine and the crank fell and hit him; is that right? A. Yes, sir, that is right. (Emphasis supplied.) £ * - *
“Q. You just waited long enough until you discovered that the motor was not starting, and then you went around to see what was the matter, did you not? A. That is right.
“Q. Did you hear him make any turns of the motor with the crank before that? A. No, sir.
“Q. You didn’t hear any turns of the motor? A. No, sir. * * * * *
“A. I had the vacuum tank filled at the time when I told Mr. Walston that I was ready for him to start it, and after the accident I started the engine myself, and I did not have any more trouble with it the rest of that day. I don’t think we had any more trouble after that because I took the vacuum tank in and we fixed it.”
Prihoda testified as follows as to Wal-ston’s duties:
“A. Well, the purpose of him being there was to grease the drag-line twice through the shift, the ten hour shift; he was to grease it in the morning before starting operations and grease it at noon, through the lunch hour, and then if any trouble came up on the machine, he was there to help mo to fix it, if we were capable in our work to fix it, change cables and things like that; he was there to help maintain the drag-line.
“Q. Now, when there wasn’t any trouble, what did Mr. Walston do — just stay on the drag-line with you or what? A. Well, at times he would clean up around the machine and inside of the machine, on the tracks, and at times he didn’t do anything, just sat around the rig; maybe plumb off of the job somewheres. ¡it Sis * * *
“Q. Most of the time was involved in *6standing around or sitting around, is that right? A. That is right.”
“Q. During the time that you wore on this job with Walston at any time did he ever relieve you as operator and operate the machine? A. No, sir.
“Q. He didn’t do that? A. No, sir.”
The Court gave the following instruction to the jury under Special Issue No. 7: “In connection with this issue, you are instructed that a man may be in the general employ of one employer who is paying his salary, but that he may be loaned to another employer so as to become the special employee of such other employer as to the work he does for such other employer, and the test as to whose employee he is at the time inquired about in this issue is to be determined by whose work and whose business was being done at such time, and which employer had the right at such time to control him in the details of the performance of his work, and you are further instructed that it is not the actual control exercised which is determinative, but the right to control, and such right to control may be exercised by the borrowing employer through another borrowed employee, and, under such circumstances, it makes no difference as to who had the right to hire and discharge the employee, or who is paying his salary.”