On Motion for Rehearing.
In a motion for rehearing appellee contends that we erred in holding that L. L. Massey could, under the law, transfer his employees, including Charles Adolphus Wood, to R. L. McKinney without the knowledge, consent or acquiescence of such employees. She bases the contention upon the assertion that the truck drivers were employed by, and working for, Massey at Tehuacana and Ralls under a contract of hire with him and that, while so employed, he transferred them to the road construction work of McKinney in Kent County. She asserts that, if they were working on the Kent County job for McKinney it was without their knowledge, consent or acquiescence, without which Massey had no legal right to transfer their employment. In support of her contention, she cites us to the case of Chicago, R. I. & G. R. Co. v. Trout, Tex.Civ.App., 224 S.W. 472.
Such is not the effect of our holding in the original opinion. The facts in the instant case are by no means the same as those revealed by the opinion 'in the Trout case. There, the Chicago, Rock Island & Gulf Railway Company contended that the injured employee was, at the time of his injury, employed by the Tucumcari & Memphis Railway Company and that the latter company was his master. The facts showed that the contract of employment was between the Chicago, Rock Island & Gulf Railway Company and the plaintiff, whereas in the instant case it is undisputed that Massey, acting as agent for McKinney under a contract to that effect, employed Charles Adolphus Wood to work for McKinney on the Kent County road job. Appellee insists that Wood did not know Massey was acting as agent for McKinney in making the contract of employment but, as stated in our original opinion, there is no testimony in the record to that effeci. It is only inferred by appellee from the fact that some of the other truck drivers testified that they did not know they were working for McKinney but thought they were working for Massey.
Moreover, the testimony in the instant case does not warrant the inference that the employees were transferred from the employment of Massey to that of McKinney as were the employees involved in the Trout case. The original contract of employment was made by Massey, acting as agent for McKinney. According to that contract the employees were to engage in ■the construction work on the road in Kent County which McKinney had contracted with the State Highway Department to construct. After the contract of employment was made, it developed that the Kent County job was not ready for them and would not be for some time. Massey then put them to work on the Tehuacana and Ralls jobs until McKinney was ready to begin work on the road construction job. When McKinney was prepared to begin the work in Kent County, Massey directed them to go to-that county and begin the work he had originally employed them to perform for McKinney. Thus it will be seen that instead of transferring their employment to McKinney after having them engaged on the Tehuacana and Ralls jobs, the truck drivers were sent to Kent County to perform the services which they had originally been employed to perform. The work which Massey gave them at Tehua-cana and Ralls, according to the testimony, only occupied the short space of time during which McKinney was making his preparations to begin work in Kent County. The circumstances under which the employees worked at the different locations are entirely different from those under which the employees worked for the railway company in the Trout case and do not warrant the conclusion that they were transferred without their knowledge or consent in the manner in which the opinion in the cited case reveals the employees of the railway company were transferred from the work in Texas to that being prosecuted by the Tucumcari & Memphis Railway Company in the State of New Mexico.
The motion will be overruled.