Hopson v. Texaco, Inc.

• Decision Date: 15 September 1965
• Docket Number: 9669.,No. 9668,9668
• Citation: 351 F.2d 415
• Parties: George HOPSON, Appellee, v. TEXACO, INC., Appellant. Rebecca B. REYNOLDS, Administratrix of the Estate of Frederick Clement Reynolds, Deceased, Appellee, v. TEXACO, INC., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

351 F.2d 415 (1965)

George HOPSON, Appellee, v. TEXACO, INC., Appellant.

Rebecca B. REYNOLDS, Administratrix of the Estate of Frederick Clement Reynolds, Deceased, Appellee, v. TEXACO, INC., Appellant.

Nos. 9668, 9669.

United States Court of Appeals Fourth Circuit.

Argued February 2, 1965.

Decided September 15, 1965.

Harry E. McCoy, Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellant.

C. Arthur Rutter, Jr., Norfolk, Va., (Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.

BOREMAN, Circuit Judge:

These actions were brought under the Jones Act (46 U.S.C.A. § 688) to recover damages for personal injuries to a seaman and for the death of another as a result of an automobile accident on the Island of Trinidad. Verdicts and judgments were rendered against Texaco, Inc., in favor of the injured George Hopson and Rebecca Reynolds, the widow and personal representative of the deceased Frederick Reynolds. From these judgments Texaco appeals.

The facts are not in dispute. George Hopson and Frederick Reynolds were American seamen employed by Texaco aboard its ship, the S. S. Texaco Wisconsin, a large tanker engaged in transporting bulk petroleum products to various ports. On April 17, 1963, the Wisconsin was at Pointe-a-Pierre on the Island of Trinidad to take on a cargo of fuel at the Texaco-Trinidad corporation refinery which was a wholly owned subsidiary of Texaco and acted as the husbanding agent for the Wisconsin while it was in Trinidad. During the loading of the vessel, Hopson and Reynolds became ill and it became necessary to repatriate them rather than have them continue as crewmen on the Wisconsin and make the forthcoming voyage with the cargo of fuel to San Diego, California, via the Panama Canal. To effect the repatriation according to applicable statutes, the Master of the Wisconsin and the seamen had to appear before a United States Consul where the seamen would be officially discharged and paid their wages. The United States Consul's office was located in Port-of-Spain, thirty-eight miles north of Pointe-a-Pierre. To arrange transportation to Port-of-Spain, the Master of the Wisconsin contacted Texaco-Trinidad. As was customary when business was to be transacted outside the confines of the refinery, Texaco-Trinidad telephoned John Abhiram's Taxi Service and requested a taxi. This taxi company, duly licensed by the Trinidad government, was one of two local companies used by Texaco-Trinidad for such purposes. Rambally Abhiram, a brother of the taxi company's owner and licensed to work as a taxi driver, was sent to take the Master, Hopson, and Reynolds to Port-of-Spain.

Between Pointe-a-Pierre and Port-of-Spain, the taxi collided with a truck. As a result of the collision, the Master and Reynolds were killed, Hopson and the taxi driver were seriously injured. In July 1963 Hopson and the personal representative of Reynolds instituted separate actions against Texaco. In their respective complaints they alleged that Rambally Abhiram's negligent operation of the taxi was the proximate cause of the accident and resulting injuries and death and that Texaco was liable for his negligence since the driver was, in fact, Texaco's agent. The cases were consolidated for trial in the lower court.

At the close of all the evidence, Texaco moved for a directed verdict. Texaco's position was that the taxi driver was an independent contractor, not an agent, and Texaco was not responsible for any negligence of the taxi driver as long as it had exercised reasonable care in selecting the taxi company and there was no evidence to show that it had failed in this respect. The District Court denied the motion and held as a matter of law that Texaco was liable for any negligence on the part of the taxi driver which contributed to the accident. The court's ruling was based on three theories, any one of which the court deemed sufficient to impose liability on Texaco: (1) the taxi driver was an "agent" of Texaco within the meaning of that term as used in the Federal Employers' Liability Act (herein called FELA); (2) Texaco owed a nondelegable duty to provide reasonably safe facilities for the seamen to use in the course of their employment; and (3) the contract with the taxi company was void under 45 U.S.C.A. § 55. The cases were then submitted to the jury on the issues of the taxi driver's negligence and damages. The jury concluded, based on facts and circumstances surrounding the accident which are not material to this appeal, that the taxi driver was negligent and awarded damages of $75,000 to the widow and dependents of Reynolds and of $45,000 to Hopson.

In this appeal, Texaco does not contest the jury's finding that the taxi driver was negligent or the amount of damages. Further, it concedes that Hopson and Reynolds were acting in the course of their employment within the terms of the Jones Act (46 U.S.C.A. 688) when the accident occurred. The thrust of its argument is that the District Court erred in holding as a matter of law that Texaco was responsible for the taxi driver's negligence on any of the three theories.

Under general maritime law a seaman could only recover against a ship or its owner for personal injuries suffered in line of service when there had been a breach of the duty to provide a seaworthy ship or to provide him with maintenance and cure. The Jones Act, under which the present suits were brought, gave to seamen or their personal representatives a cause of action against their employer based on negligence. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932). By reference, the Jones Act incorporated the standards of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, for determining the employer's liability. Under section 1 of the FELA, 45 U.S.C.A. § 51, a railroad is liable to its employees for injuries or death resulting in whole or in part from the negligence of any officers, agents, or employees of such railroad. Other sections of FELA, not material here, abrogate or modify the common law defenses of the fellow servant rule, assumption of risk, and contributory negligence.

The first theory relied on by the District Court to hold Texaco responsible for the taxi driver's negligence was that the taxi driver was an "agent" of Texaco within the meaning of section 1 of the FELA. That section does not define the term "agents." Of course, if the taxi driver was an agent under common law principles, he would be an agent for the purposes of the FELA also. However, the court ruled as a matter of law that the taxi driver was an agent and it is clear from the record that the court's ruling was not based on common law principles, but primarily upon the decision in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). The court concluded that the taxi driver was an "agent" because in transporting the seamen to the U.S. Consul's office to be repatriated, he was performing an "operational activity" of Texaco.¹

The Sinkler case established new concepts to be used in determining who is an "agent" under the FELA. But we do not think that decision can be interpreted to mean that every independent contractor who performs some function incident to the business of railroading or shipping is an agent of the railroad or ship. There, the plaintiff was employed by the Missouri Pacific Railroad as a cook in the private car of Missouri Pacific's general manager. Belt Railway was under contract with Missouri Pacific to perform all the switching operations in Union Station at Houston, Texas. Belt had been organized by Missouri Pacific and other common carriers for that specific purpose and had been performing all the switching operations since 1905.² On the day of the accident, Belt's switching crew undertook to move the car in which Sinkler was working from one track to another. Through negligent fault of the switching crew, the car violently collided with another car and plaintiff was injured. In holding that Missouri Pacific was liable for the negligence of Belt's employees, the Court did not base its decision upon consideration and application of common law principles of agency. Instead, the Court elected to base its decision upon what it found to be the broad congressional purpose behind the legislation and the nature of the service performed by Belt's employees. The purpose was stated as follows:

"* * * This statute, an avowed departure from the rules of the common law * * * was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. * * * The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier. * * * It was the conception of this legislation that the railroad was a unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any other member engaged in the common endeavor. * * *" 356 U.S. at pp. 329-330, 78 S.Ct. at p. 762.

The Court said:

"* * * Switching is a vital operational activity of railroading consisting in the breaking up and assembly of trains and the handling of cars in interchange with other carriers. This function, in the Houston area, had been contracted by the respondent and its predecessors, and other carriers, to the Belt Railway, a carrier specially organized for that purpose." 356 U.S. at p. 327, 78 S.Ct. at p. 760.

In considering this appeal, it is necessary that we determine the intended meaning of the Supreme Court in its use of the phrase "operational activities." The language used by the Court in that connection is most helpful:

"In the present case the respondent

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