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On Motion for Rehearing

In its original opinion this court held that the finding of the jury that Sand, Inc., was negligent constituted a determination that Charles C. Kilgore participated as the agent of Sand, Inc. in the dangerous activity. The court now concludes that it erred in this holding.

There is no direct evidence that the defendant Sand, Inc., empowered Mr. Kilgore to take charge of the dragline operation or that the defendant Sand, Inc., had the authority to do so. Sand, Inc., as holder of the leasehold estate, was admittedly in general charge of the premises. However, it is undisputed that T. A. Kilgore & Company owned and operated the dragline machinery.

In order to recover against the defendant Sand, Inc., upon the doctrines of respondeat superior or agency the plaintiff had the burden of proving that Charles C. Kilgore acted on the part of Sand, Inc., in his control of the operation of the dragline equipment. This fact was not established by the plaintiff as a matter of law, and the plaintiff failed to submit any issue to the jury on the question. Since the trial court’s judgment was adverse to the plaintiff’s position, the omitted issue cannot be deemed found under Rule 279, Tex.R.Civ.P.

It is unnecessary to consider whether the defendant Sand, Inc., would be liable, as the occupier of the leasehold premises, for a failure to warn the plaintiff of the dangerous condition. Aside from the argument advanced by the defendant Sand, Inc., that it had no legal duty to warn the plaintiff, it is clear from the record that the plaintiff did not obtain a finding of negligence based upon a failure to warn. The jury found that Sand, Inc., was negligent in failing to “properly instruct” personnel as to the use of dangerous equipment, but this finding cannot support a judgment for the plaintiff because it was not established that the defendant Sand, Inc., had any right to control the dragline operation.

The motion for rehearing is granted, this court’s original judgment is vacated and set aside, and the trial court’s judgment is affirmed.

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How this case has been treated — in progress