concurring and dissenting.
I concur with the holding by the majority that Lara was not a consumer under the Deceptive Trade Practices Act, and that appellant’s third point of error was correctly overruled. I further concur with the holding by the majority that appellants’ first point of error was properly overruled since the point presents nothing for review. However, in my opinion, the summary judgment evidence conclusively proved that the driver of Raven’s truck was Heldenfels’ borrowed servant as a matter of law. Therefore, I do not agree that the appellants’ second point of error would be sustained, and I dissent from that portion of the majority's holding.
The majority summarizes the summary judgment evidence. I will set out verbatim the deposition testimony of each witness insofar as the testimony of the several witnesses relates to the issue of the right to control Lile’s truck drivers. Charlie Lile, individually, and d/b/a Raven Transport and Raven Supply, appellee, (hereafter “Lile”), movant for summary judgment, relies upon the testimony of himself, that of Heberto Hernandez, that of Benny Martinez and that of William “Sonny” Ham. Celia A. Lara, in the several capacities in which she sued, appellant, (hereafter “the Laras”) relies upon the testimony of Armando Escatiola and possibly that of Jordan S. Mathias.
The issue to be decided is whether Hernandez was a “borrowed servant” of Hel-denfels. This majority holds that there is a question of fact on this issue. I disagree. I would hold that Hernandez was a borrowed servant as a matter of law because at the time of the accident, Hernandez was under the exclusive control of Heldenfels.
If the general employees of one employer are placed under the control of another employer in the manner of performing their service, they become special or borrowed employees of the latter. Producers Chem. Co. v. McKay, 366 S.W.2d 220, 225-26 (Tex.1963); Francis v. Johnson, 777 S.W.2d 462, 464-65 (Tex.App.—El Paso 1989, writ denied). When no written contract between the employers outlines the right of control, as is the case here, or when the contract is implied, the right of control is necessarily determined as an inference from the facts and circumstances relating to the scope of the general project, the nature of the work to be performed by the machinery and employees furnished, acts representing an exercise of actual control, and the right to substitute another operator of the machine. J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 331 (Tex.1968); McKay, 366 S.W.2d; Francis, 777 S.W.2d at 464. Sometimes the only reasonable inference to be drawn from the facts and circumstances in evidence is that right of control of the manner in which the employee performs his duties is surrendered to the special employer. McKay, 366 S.W.2d at 226; Francis, 777 S.W.2d at 465.
Here, we do not have any evidence of a contract expressly ceding the right of control of Heldenfels. It is undisputed, however, that Lile and his company were to deliver culverts to the job site, and that Heldenfels was to construct the culverts on the site.
LILE’S TESTIMONY
Lile was not at the job site at the time of the accident. He testified in relevant part, as follows:
Q But in terms of your job, your company’s job as far as the delivery goes when you went out there that was something self contained, something that your company was in charge of, the delivery?
A My job is to get it to the job site.
Q Okay.
A When it gets to the job site then the Heldenfels people tell him what he needs to do.
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Q When a truck comes out there its coming down Padre Island Drive then it of course has to pull off to the construction site. When it comes to the construction site does the truck driver automatically know where he is *544supposed to go or does somebody direct him?
A No, he stops.
Q Okay. And where does he stop?
A He stops inside the barricaded areas.
Q And who is it that directs him where he needs to go?
A Heldenfels Brothers.
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Q Now, Mr. Martinez will then direct you or Mr. Hernandez or the other driver to go wherever the culvert is needed at that time; is that right?
A Right.
Q Is the driver for your company supposed to move on his own or only on the instructions of Mr. Martinez?
A He moves when the — not necessarily — well, Mr. Martinez.
HERNANDEZ’ TESTIMONY
Hernandez worked for Lile as a truck driver. He drove the truck which ran over and killed Raul V. Lara. He testified in relevant part, as follows:
Q Okay. When you got out to the job site were you to move your truck once you got to the Heldenfels’ job site on your own or only on the instructions from someone from Heldenfels like Bennie (Martinez)?
A Only in the instructions from someone from Heldenfels.
* * * * He *
Q Okay. Now when you got out there on the day of the accident, let’s go to that day. You drove up just like you told us. Did you see Bennie?
A Yes, sir.
Q Okay. What did Bennie tell you to do?
A Well, basically he told our first truck he backed up in there, we all helped him take off the chains and he — the crane they all hooked up all the stuff on the crane to take off the box. They took off the box, moved off the truck, and he went out, you know, to go get another load. I sat there. They moved the box down to the ditch, they started setting and then they motioned me to back up in there. So they spotted me where I was supposed to park. I parked there, got off the truck, removed the chains off the thing. I was watching the guys work on the — down at the ditch..
Q You were outside your truck?
A Yes, sir.
Q Okay.
A I was there for several minutes and all of a sudden, you know, it just started to rain and started to rain pretty hard so everybody scattered, you know, they went out to their cars. I saw them, you know — well, I saw some people run over to their cars so I walked up, climbed in the truck, I sat there for a couple of minutes and then Bennie Martinez knocked on my door. I opened the door, he asked to move forward. I looked at my right hand mirror, I saw where the crane was at, and figured, you know, he wasn’t hooked up to the box or nothing and I released by brakes, put it in gear, moved forward. Next thing, you know, they are hollering up. I stop. I figured that’s where they wanted me to stop. I put my brakes on. I got off the truck and, you know, I heard a lot of commotion. I walked over to the back. That’s where I saw the man laying on the ground and they told me, you know, that I run over him ...
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Q Okay, the only one that told you to move out was Bennie, not a spotter?
A Yeah. Bennie was the one that told me to move.
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Q Okay. And the rules out there were that you didn’t move without a spotter once you got on the site.
A Yes, sir.
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MARTINEZ’ TESTIMONY
Bennie Martinez was a supervisor for Heldenfels on the date of and at the time of the accident. It was his job when Lile’s trucks reached the job site to tell the driv*545ers where to move their trucks in order to unload the culverts. Martinez conducted a meeting of all truck drivers about two hours before the accident occurred. Hernandez attended the meeting. Martinez instructed the drivers at the meeting not to move their trucks until they were told to do so. He further stated in response to the questions asked of him, as follows:
Q Now, when you say I moved the truck forward, what do you mean by that?
A I told the truck driver to.
Q Okay. And did you tell him that with hand signals, or did you go right up to his door and tell him?
A I went over there to his door.
Q Okay. And told him to move it forward?
A That’s right.
Q And did you tell him how far you wanted him to move it?
A I told him to take the truck out of the way because we was going to bring the 245 caterpillar hoe and push the boxes together.
Q And when you told the driver to do that, did he move the truck like you told him?
A Yes, ma’am.
WILLIAM “SONNY” HAM’S TESTIMONY
Ham was a superintendent for Helden-fels at the time of the accident. He testified in relevant part, as follows:
Q On the day of this accident, do you know who was doing the job of directing the truck where to go?
A Mr. Martinez
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Q Is it fair to say that once Mr. Hernandez, or, for that matter, any of the Raven drivers got to the Heldenfels’ job site that they were exclusively under Heldenfels’ direction and control as far as the work they were doing?
A Yes, ma’am.
Q And if you-all were dissatisfied with a Raven driver, did Heldenfels have the authority to run them off the job site?
A Yes, ma’am.
ESCATIOLA’S TESTIMONY
Escatiola was an employee of Heldenfels on the day of the accident, and was working at the job site when the decedent was run over by the truck. His deposition was attached to appellant’s response to appel-lee’s motion for summary judgment. He testified in pertinent part, as follows:
Q How did they (the trucks) get to the site?
A To tell you the truth, I didn’t see nobody to tell the truck to move, or to tell them to go somewhere.
Q I’m not talking about at the time of this accident. I’m talking about normally when a truck got to the outside of the construction—
A Well, they had to go — go get some more boxes—
Q When they got to the construction site, did a Heldenfels’ employee tell them where the truck — tell the truck driver where to drive so that they could unload their truck?
A Yes, sir, where we were working at, they had to reverse it.
Q And a Heldenfels’ employee would try to help the truck driver back in and tell him where to go?
A Well, yes, sir.
Q All right. Now, before this accident, the truck that was involved in this accident had already been backed up and put in place.
A Yes, sir.
* * * * * *
Q Well, do you — have—do you know of any reason why the truck driver would have moved if he wasn’t told to move?
A Well, I don’t know why the truck driver moved because I didn’t see nobody tell him to move, and I didn’t tell him to move.
MATTHIAS’ TESTIMONY
Matthias is a registered professional engineer. He was not a witness to the acci*546dent. The only testimony remotely concerning the right of control of Hernandez is his answers to the questions:
Q Okay. Would you agree with me that the — that the job safety rules with regard to movement of vehicles is really the responsibility of the person who is in control of the premises?
A Well, they have the ultimate responsibility, but I don’t think that relieves say the truck driver of the necessity of playing by the rules.
Apparently, the majority bases its decision on the following factors stated in their opinion: 1) “although Lile’s employees were temporarily following the orders of the Heldenfels people, Lile continued to hold his employees on his payroll and to control them, particularly in their manner of operating and caring for his equipment;” and 2) “Lile could replace each employee assigned to deliver the culverts with another employee of his own choosing, and he did so after this accident occurred, replacing a badly shaken Hernandez with another Lile employee.” I submit that the above has no bearing on the issue of control of Hernandez after he had arrived at the construction site and had positioned his truck for unloading the culvert. Other factors which evidently furnish a basis for the majority’s holding that a fact issue exists are the following excerpts from the opinion:
Escatiola stated that he did not see or hear anyone tell the driver of the truck to move. In fact, Escatiola testified that it was his job to tell Hernandez to move the truck, after he’d hooked cables to the culvert being loaded and there dismounted the truck.
Apparently, the majority holds that Eseati-ola’s testimony creates a fact issue which precludes the rendition of summary judgment. I disagree. As heretofore stated, the issue is the right to control the actions of Lile’s truck drivers after they had reached the construction site and were proceeding to position their truck in order to unload the box culverts. The identity of the Heldenfels’ employee who instructed Hernandez to move the truck forward is immaterial to the controlling issue in this case. The fact that Escatiola testified that he did not see or hear anyone tell Hernandez to move the truck does not conflict with the testimony of Martinez, Ham and Hernandez that on the occasion in question Martinez told Hernandez to move the truck forward.
The evidence is undisputed that once Lile’s truck driver arrived at the job site, he was under the exclusive control of Hel-denfels (the general contractor), its employees, servants and agents. He was not to move his vehicle upon reaching the job site unless so ordered by an employee of Hel-denfels. Therefore, Heldenfels assumed total control over the manner and performance of the movement of the truck by a truck driver after he had arrived at the job site. Once on site, the truck driver became the special or borrowed employee of Heldenfels Brothers, Inc., relieving Lile from vicarious liability for his acts. Whether the truck driver then violated specific orders of his special employer, Helden-fels, is totally irrelevant to the issue of vicarious liability between the truck driver and Lile. It might be relevant to the vicarious liability between the truck driver and Heldenfels, but neither Heldenfels nor the truck driver are parties to this lawsuit and the issue has nothing at all to do with the summary judgment issues presented. The Laras, appellants, settled their claim against Heldenfels prior to the filing of the motion for summary judgment by Lile. Nowhere in the deposition evidence is there any rebuttal to the uncontradicted summary judgment evidence of the Heldenfels Brothers supervisors that they alone (Hel-denfels) were in control of the vehicle and driver in question after it came onto the job site. The only autonomy left for the driver was to place the truck in gear and pull forward when told by an employer of Hel-denfels to do so. The majority does not set out any facts in their opinion that raise any questions as to who was in control of the driver after he reached the barricaded area. A question of fact simply does not exist.
In my opinion, the summary judgment evidence established as a matter of law that Hernandez was a “borrowed servant” *547of Heldenfels at the time of the accident. The trial judge properly and correctly rendered summary judgment for Charlie Lile, individually and d/b/a Raven Transport and Raven Supply. I would overrule the second point of error presented by the Lar-as, and would affirm the judgment of the trial court.