Simpson v. Home Petroleum Corp.

• Citation: 770 F.2d 499
• Decision Date: 12 September 1985
• Docket Number: No. 84-2420,84-2420
• Parties: Jerry K. SIMPSON, Plaintiff-Appellant, v. HOME PETROLEUM CORPORATION and Home Oil Corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 499

770 F.2d 499

Jerry K. SIMPSON, Plaintiff-Appellant, v. HOME PETROLEUM CORPORATION and Home Oil Corporation,

Defendants-Appellees.

No. 84-2420.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1985.

Ungar, Wheelahan & Dunn, Wiedemann & Fransen, A. Remy Fransen, Jr., New Orleans, La., Anthony E. Pletcher, Corpus Christi, Tex., for plaintiff-appellant.

Kathryn Snapka, Corpus Christi, Tex., for defendants-appellees.

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

Before JOHNSON, GARWOOD and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Plaintiff-appellant Jerry Simpson brought this Texas diversity action against the lessee under an oil and gas lease, its parent, and the lessee's drilling consultant for injuries he received in a drilling rig accident as a result of the alleged negligence of the drilling consultant. Simpson appeals from a judgment in favor of the lessee based upon the jury's finding that the drilling consultant was acting not as an agent or an employee of the lessee but rather as an independent contractor. As a consequence, no respondeat superior liability could attach to the lessee and its parent. Concluding that the district court properly instructed the jury that Simpson had the burden of proving that the drilling consultant was not an independent contractor, we affirm.

I. Factual and Procedural Background

Simpson was employed by Well-Tech, Inc. (Well-Tech), as a tool-pusher on a Home Petroleum Corporation drilling rig near Alice, Texas. ¹ On August 19, 1980, Simpson and other members of the Well-Tech crew were in the process of rigging up the rig floor. Bill Weems, Home's drilling consultant, instructed the crew, over Simpson's protests, to release the block from the kelly in order to use the block to lift and install recently arrived blow-out preventers. In the course of releasing the kelly from the block, the kelly shifted because it had not yet been stabilized. As a result, Simpson sustained an injury to his hand. After a series of operations, Simpson's hand, up to his wrist and excluding his thumb, was amputated.

Simpson sought recovery for his injuries from both Weems and Home. Weems settled with Simpson prior to trial; the action against Home, nevertheless, proceeded to trial. Simpson complained that Home's liability arose under the doctrine of respondeat superior as a result of the allegedly negligent acts of Weems, Home's alleged employee at the rig site. Home, however, contended that Weems' status was that of an independent contractor. Consequently, at trial the relationship between Weems and Home was a hotly contested one and the parties introduced much evidence relating to the employment status of Weems at the time of Simpson's accident.

In order to establish that Weems was an employee for whom Home would be responsible, Simpson introduced substantial evidence indicating that Weems held himself out as, and the rig workers understood him to be, Home's employee on the job. Simpson acknowledges in his brief on appeal, however, that this evidence does not show that degree of control of Weems by Home which would establish an employer/employee relationship. Nevertheless, Weems' duties as a "consultant," supervising the rig site on behalf of Home, were shown to be almost identical to the duties of "company men" employed directly by Home. Weems, who died before trial, but whose deposition testimony was presented, testified "I have been consulting on drilling rigs, primarily a few work-over rigs, mostly, in the past five years in the employ of Home Petroleum Corporation." He further testified that he was consulting as of January 1981 exclusively for Home and that he did not have any "agreements" with Home. Simpson offered additional testimony by oilfield experts indicating that "consultants" such as Weems are not truly independent, but rather are under the control of the oil company. This evidence tends to establish an employer/employee relationship between Home and Weems.

Home offered evidence indicating that Weems acted as an independent contractor, for whom Home would not be responsible. It established that Weems billed for his services on a monthly basis and, unlike the company men, that Home did not take out deductions from his paycheck. It also introduced an expert witness who testified that consultants like Weems work independently of rig operators such as Home. On cross-examination, however, the expert testified that a drilling consultant has somewhat less discretion than a drilling foreman to vary from Home's instructions in the well prognosis. All in all, this evidence tends to establish an employer/independent contractor relationship between Home and Weems.

At the close of the evidence, Simpson submitted to the district court a proposed jury charge which placed the burden upon Home to prove the existence of an independent contractor relationship between Home and Weems. ² Over Simpson's objection, the district court instructed the jury that the burden was on Simpson to prove by a preponderance of the evidence that Weems was acting as an employee of Home. ³ With these instructions in mind and considering the evidence relating to Weem's employment statute, the jury found that Weems acted as an independent contractor. The district court, relying upon Simpson's failure to satisfy the requirements of respondeat superior, then entered judgment that dismissed the action against Home.

II. Burden of Persuasion

In declining Simpson's requested charge, which places the burden upon Home to prove that Weems was an independent contractor, the district court recognized that Texas law controls this issue. ⁴ Many Texas decisions have held that one shown to be performing the work of another is "presumed" to be the latter's employee, with the result that the burden then shifts to the party asserting independent contractor status to make proof of the facts reflecting that relationship. Some of the language in these opinions is sufficiently broad that, if read in isolation, it could also be understood as encompassing the burden of persuasion. See Ray, Texas Law of Evidence Sec. 96 (3rd ed. 1980) (hereafter Ray). In each of these cases, however, not only was the issue of the burden of persuasion not before the appellate court, but the matter which the court was actually addressing in its remarks concerning the "burden of proof" was the burden of going forward with evidence. ⁵ In the general area of presumptions and "burden of proof," it is well-recognized that "ambiguous phraseology and terminology" abound. Ray, Sec. 41.

Moreover,

"[i]t is now commonplace that the term 'burden of proof' is used in a double sense. It may mean either the burden of persuading the trier of the fact or the burden of introducing evidence. Much confusion would be eliminated if these or similar terms were constantly employed and the ambiguous word 'proof' entirely discarded." Id. (footnotes omitted).

It is recognized that as to any given issue the burden of persuasion and the burden of production of evidence generally both fall on the same party at the beginning of trial, that the burden of persuasion does not thereafter shift, but that the burden of production may shift back and forth as each side produces evidence, takes advantage of presumptions or the like. As explained in Ray:

"It is the generally accepted view of courts [citing twelve Texas cases in a footnote] and textbook writers, including Professors Wigmore and Thayer, that the burden of persuasion never shifts. We have already seen that considerations of fairness and policy based on experience ultimately determine which party shall have this burden on each issuable fact. These considerations are usually disclosed by the pleadings. Thus, before the trial begins, the location of the burden is fixed. The view that this burden never shifts, but remains upon the same party throughout the trial, is based upon considerations of practical convenience. [Id. Sec. 46 at 57-58 (footnotes omitted; emphasis added).] ⁶

"...

"In contrast with the accepted view that the burden of persuasion remains on the same party throughout the trial, it is everywhere agreed that the other burden, i.e., the burden of producing evidence (called by the Texas courts the burden of introducing evidence, the burden of evidence, and the weight of the evidence), may and often does shift back and forth between the parties like a tennis ball in play.... A party cannot be sure beforehand when it will be cast upon him or when it will be discharged or the amount of kind of evidence necessary to remove it, except, of course, where a presumption has by precedent been given that effect.

"This statement is subject to one qualification. At the outset the burden will usually rest upon the party having the burden of persuasion. The Texas courts say that it continues on him until he makes out a prima facie case. But when he establishes a prima facie case, the burden of evidence shifts to the opponent. The accuracy of these statements depends upon the sense in which 'prima facie case' is used.... It is therefore submitted that it would be more accurate to say: (1) The burden [of production] remains upon a party until he has satisfied the judge that his evidence is sufficient to go to the jury. (2) It shifts to or is cast upon the opposite party only when the proponent's evidence is sufficient to entitle him to a ruling that the opponent shall lose if he fails to come forward with evidence." [Id. Sec. 47 at 60-62 (footnotes omitted; emphasis added).]

It cannot be doubted that at the beginning of trial the burden was on Simpson, in order to hold Home vicariously liable for Weems' negligence under respondeat superior, both to present evidence tending to show, and to persuade the jury of the existence of, that relationship between Weems and Home which the substantive law requires in order for the latter to be vicariously liable for...