The only issue in this case is whether the trial court was wrong in instructing the jury regarding a loaned employee. We cannot say as a matter of law that the instructions presented by the trial court were wrong or that the rejection of appellant's proffered instruction was erroneous. Therefore, the judgment is affirmed.
George's, Inc., the appellant, is a poultry processing plant. Hugh Otwell, D/B/A Otwell Manufacturing, the appellee, is a small welding company, which agreed to manufacture about 200 pallets to be used by George's in its business. After George's received the pallets, adjustments were required which Otwell agreed to make. Two employees of Otwell's were sent to George's to make the changes. It is undisputed that they were paid by Otwell. A mechanic, in the employ of George's, told the two Otwell employees where to work and what was to be done. The two men decided that a cutting torch was needed to do the work more quickly. They obtained permission from the mechanic to use one owned by George's. As a result of using the torch a fire started and damages from the fire were agreed to have been over $55,000. The main argument to the jury was whose employees the two men were at the time of the accident. The jury was instructed on the borrowed servant doctrine: that is, if the jury found that the two
On appeal the argument focuses on two instructions, one of which was given by the court and is as follows:
George's objected to that instruction which was given by the court and asked that the following instruction be given, which was refused by the court:
We find that the jury was properly instructed in this case. In a series of case we have held that the most significant question regarding a loaned employee is which company has direction and control of the employee. Donahue v. Cowdrey, 246 Ark. 1028, 440 S.W.2d 773 (1969); see also Davis v. Lingl, 277 Ark. 303, 641 S.W.2d 27 (1982); St. Louis, I.M. & S. Ry. Co. v. Gillihan, 77 Ark. 55, 92 S.W. 793 (1906).
The instruction given by the court in this case was taken from the case of Donahue v. Cowdrey, supra. It is argued that the instruction was wrong because a second instruction in that case was not given. Appellant did not request that second instruction but instead offered the one set forth herein which speaks of "supreme choice," "control" and "detail." The evidence presented in this case did not justify such an instruction since the issue was generally who had the right to direct and control the conduct of the employees at the time in question. We find that the issue was presented fully and clearly in the instructions given. Beevers, Adm'x. v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967).