dissenting.
While I agree that the judgment against Empire Security Agency, Inc. should be affirmed to the extent that it awards actual damages, I would reverse the judgment against Gulf Oil Corporation and render judgment that Thomas Williams take nothing against Gulf.
Gulf’s evidentiary points are well taken. The court errs in affirming judgment against Gulf because the evidence is legally and factually insufficient to support a finding that Gory was the borrowed employee of Gulf at the time of the shooting.
Gulf had a written contract with Manpower, Inc. by which Manpower furnished guards for security at Gulf stations. Pursuant to this agreement, Gulf paid Manpower. Under a separate contract, Empire Security Agency agreed with Manpower to furnish security guards. Empire hired and fired these guards and furnished them to Gulf stations pursuant to its contract with Manpower.
In determining the threshold question of whether sufficient evidence supported the jury’s finding that Gory was the borrowed employee of Gulf, Section 220(2), Restatement (Second) of Agency (1958), gives solid assistance. It provides,
“(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.”
Regardless of any disputed testimony certain matters are conclusively established: (a) that Gulf had no agreement with Gory or Empire; (b) that Gory was engaged in the distinct occupation of being a security guard; (c) that Empire, not Gulf, furnished Gory his uniform and firearm; (d) that Empire, not Gulf, paid Gory for the work done; (e) that Empire, not Gulf, provided training and instruction for the security guards; and (f) that Empire, not Gulf, regularly engages in the business of security services. Application of Section 220(2) compels a conclusion that the evidence does not support a finding that Gory was the borrowed employee of Gulf.
The case of Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963), sets out the general rule for determining when the employee of one employer becomes the borrowed employee of another. Under its guidelines, if Gory had been placed under the control of Gulf in the manner of the performance of his duties, he might become the special or borrowed employee of Gulf. The evidence showing this control is not found in the record. Gulf did not hire Empire or Gory. Gulf did not contract with Empire or Gory. Empire’s president stated that no person with Gulf instructed Empire concerning the security duties at the Gulf station.
When a contract exists between a general employer and a special employer, that contract controls the question of employment at the time in issue. Producers Chemical Company v. McKay, supra. No contract existed between Empire and Gulf. Therefore, the question is whether Gulf had the *275right to control the manner and details of Gory’s work. This control must be authoritative rather than suggestive, Producers Chemical Company v. McKay, supra, and any sporadic acts of control by Gulf should not be considered. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964). Under the facts of this case I conclude that the evidence is both legally and factually insufficient to support the finding that Gory was a borrowed employee of Gulf Oil Corporation.
I dissent from the Court’s decision to the extent that it holds that the judgment against Gulf Oil Corporation is affirmed.