Pilgrim v. Fortune Drilling Co., Inc.

• Decision Date: 17 August 1981
• Docket Number: No. 80-1710,80-1710
• Citation: 653 F.2d 982
• Parties: Burl D. PILGRIM and Martha Pilgrim, Plaintiffs-Appellees, v. FORTUNE DRILLING COMPANY, INC., Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 982

653 F.2d 982

Burl D. PILGRIM and Martha Pilgrim, Plaintiffs-Appellees, v. FORTUNE DRILLING COMPANY, INC., Defendant-Appellant.

No. 80-1710.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 17, 1981.

Fillmore & Camp, H. Dustin Fillmore, Richard L. Scheer, Randy J. Hall, Fort Worth, Tex., for defendant-appellant.

Donald W. Griffis, San Angelo, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

In this diversity case, defendant, Fortune Drilling Company, Inc., appeals an adverse judgment rendered after a jury trial, holding it both primarily and vicariously liable for the injuries of plaintiff, Burl D. Pilgrim, which were sustained when his vehicle was struck by a pickup truck owned and driven by Elbert Pillow, an employee of defendant. ¹ We reverse.

I.

The accident which is the basis of this suit occurred on May 25, 1977, about two miles south of Sonora, Texas on U. S. Highway 277 at approximately 7:30 in the morning. Pillow, who was employed by Fortune as a motorman on a drilling crew, had just finished work at 7:00 a. m. and was driving his truck home from the drilling rig when he struck the rear of plaintiff's pickup truck, causing it to leave the highway and plunge into a ravine. As a result, the plaintiff suffered severe injuries which have left him a paraplegic confined to a wheelchair.

At the time of the accident Pillow's home was in Iraan, Texas, which is approximately 117.5 miles from the location of the drilling rig at which he worked. The accident occurred about 15.5 miles from the drilling rig.

Fortune's drilling crews at the rig near Sonora worked twelve hour shifts and were off for twenty-four hours. Three crews worked the rig near Sonora to keep it operating twenty-four hours a day, seven days a week. Because the crews worked twelve hours and then were off twenty-four, they constantly alternated between day and night shifts.

Pillow testified that it was a three hour drive from his home in Iraan to the drilling rig location. This meant that on top of his twelve hours of work at the drilling rig, Pillow drove six hours to and from the rig each shift he worked. Fortune did not provide the crew members with any kind of living quarters at the rig location where, after a tiring day's work, an employee could rest before making the long drive home. ² Nor did Fortune provide transportation for its drilling crews from their homes to the drilling rig site. ³

However, Fortune did pay a travel allowance of $25 a day to one member of each crew at each of its drilling rigs. The executive vice president of Fortune during the time of the accident testified that it was not necessary for the person who received the travel allowance to have driven his automobile from his home to the rig location on the day for which the allowance was paid, but that, for each crew, the members decided among themselves who would receive the travel allowance for the day.

The uncontradicted testimony of Fortune's executive vice president was that the drilling crew members were not on the payroll while they were traveling to and from their work sites. He further testified that, as part of their contract of employment, Fortune had no right of control over the activities of its drilling crew employees once they finished their day's work and left the drilling rig site. Pillow's testimony confirmed this. ⁴

The case was submitted to the jury for the return of a special verdict under Fed.R.Civ.P. 49(a). The jury found Pillow to have been negligent in his speed, in the application of his brakes, in his lookout, and in failing to maintain an assured clear distance between his pickup and the pickup driven by plaintiff. With respect to Fortune Drilling Company, the jury found that it was negligent "in permitting its employees to go out on the highways when they were in such an exhausted condition as to create an unreasonable risk of harm to others." ⁵ Both Pillow's and Fortune's negligence were found to have been a proximate cause of the accident in which plaintiff was injured. Moreover, the jury found that, at the time of the accident, Pillow was an "employee acting in the course of his employment" for Fortune Drilling Company. The district court entered judgment on the verdict, holding Pillow and Fortune to be jointly and severally liable. ⁶

II.

Fortune first contends that the district court erred by submitting to the jury the question of its primary negligence and by entering judgment against it on the jury's findings that it was negligent "in permitting its employees to go out on the highways when they were in such an exhausted condition as to create an unreasonable risk of harm to others." Fortune argues that as a matter of law it could not have been negligent in this respect since it owed no duty to the plaintiff. We agree.

Since jurisdiction in this case is based on diversity of citizenship, Texas law controls. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The plaintiffs candidly admit that no Texas appellate court has recognized the duty on the part of an employer to prevent his employees from driving when the employer knows, or in the exercise of ordinary care should know, that due to prior working conditions his employees are so tired that they cannot be safe, alert and competent drivers and, hence, would create an unreasonable risk of harm to others using the highways. We, therefore, occupy the position of deciding this case as the Texas courts would if confronted with these facts and circumstances. See Stevens Industries, Inc. v. Maryland Casualty Co., 391 F.2d 411, 413 (5th Cir. 1968). In "the always-dangerous undertaking of predicting what Texas courts would hold if the issue were presented squarely to them," Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363, 1366 (5th Cir. 1975), we are Erie-bound to look to all available data; for example, to such sources as the Restatements of Law, treatises and law review commentary, keeping in mind that we must choose the result which we believe the state court would be most likely to reach. Putnam v. Erie City Manufacturing Co., 338 F.2d 911, 917 (5th Cir. 1964).

It is well-settled under Texas law that negligence consists of the failure to observe a legal duty, and a "plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability." Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976); Coleman v. Hudson Gas and Oil Corp., 455 S.W.2d 701 (Tex.1970). In their complaint, the plaintiffs alleged that Fortune's nonfeasance was a proximate cause of the accident, that is, that Fortune failed to prevent Pillow from driving on the highways when its supervisory personnel knew or should have known that Pillow was so exhausted from work that his driving home would create an unreasonable risk of harm to other motorists. Under Texas law, nonfeasance is that species of negligence consisting of the failure to do an act which a person is under a duty to do and which a person of ordinary prudence would have done under the same or similar circumstances. See Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 250-51 (1943). Therefore, a prerequisite to Fortune's liability under the theory of primary negligence is whether it owes a duty to users of the public highways to prevent its employees from driving home when they are so exhausted from working that their driving would create an unreasonable risk of harm to others.

A duty to control the conduct of another presupposes that the right to exercise such control exists. The extent to which an employer has the right to control the conduct of his employees depends upon the peculiar circumstances of the employment relationship with respect to each individual employee. It is elementary, though, that an employer possesses the right and duty to control the conduct of an employee while the employee is acting within the course of his employment. We conclude, however, on the basis of this record, that Pillow was acting outside the course and scope of his employment with Fortune when he was driving home from work on the day of the accident. ⁷ Therefore, we must determine whether, under Texas law, Fortune had a right to control the conduct of its employees when they were no longer in the course and scope of their employment as drilling crew members, i. e. to prevent them from driving home if they are too exhausted to drive after a day's work. ⁸ Absent such a right of control, there can be no duty to control.

Restatement (Second) of Torts § 317 sets forth circumstances under which an employer has a duty to control the conduct of an employee who is outside the scope of his employment. Section 317 states:

"A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control."

Comment b to § 317 states:

"(A) master as such is under no peculiar duty to control the conduct of his servant while he is outside of the master's premises unless the servant is at the time using a chattel entrusted to him as servant. Thus, a factory owner is required to exercise his authority as master to prevent his servants, while in the factory yard during the lunch hour, from indulging in games involving...