294 F. 2d 580 - Black v. Sinclair Oil & Gas Company

Appellant Pete Black appeals from a judgment entered upon instructed verdict in favor of appellee Sinclair Oil & Gas Company.1 Black was an experienced oil driller and was an employee of Lee Brown Drilling Company, an independent contractor, who was engaged in drilling and bringing in a well for Sinclair. As Brown's employee, he was engaged in, and at the time was in charge of, swabbing a well over the top and down into a tank belonging to Sinclair when the riser on the test tank came up and appellant climbed to the top of the tank and put the riser down. He then proceeded to another point on the top of the tank to gauge it and while so doing, slipped and fell to the ground and was injured. He charged that Sinclair, the owner of the tank, was negligent in a number of particulars hereinafter set out.2

We agree with the court below that, under the contract in effect between Sinclair and Brown and the law of independent contractors as recognized in Texas, the evidence established no actionable negligence against Sinclair, the owner of the property, and that the court correctly entered the judgment appealed from in its favor. What Judge Hutcheson said in opening his specially concurring opinion in this Court's decision of Gulf Oil Corp. v. Wright et al., 5 Cir., 1956, 236 F.2d 46, 55, is applicable here.3

The plaintiff here particularizes the grounds of negligence relied upon.4 The complaint brings the case clearly within the ambit of several cases decided by this Court in which the facts were very close to those in the record before us. E. g., Cook et al. v. Phillips Petroleum Co., 5 Cir., 1946, 158 F.2d 10; Sword, Houston Fire & Cas. Ins. Co. v. Gulf Oil Corp., 5 Cir., 1958, 251 F.2d 829; Hurst, Employers Cas. Co. v. Gulf Oil Corp., 5 Cir., 1958, 251 F.2d 836; and Gulf Oil Corp. v. Bivins, 5 Cir., 1960, 276 F.2d 753.5 And cf. McKee, General Contractor v. Patterson, 1941, 153 Tex. 517, 271 S.W.2d 391.

The contract in this case is on a printed form and follows closely, if not precisely, the terms of those discussed in the cases mentioned. The undisputed proof showed that Black was the servant of an independent contractor; that he was an experienced workman in the work being performed; that he had been on top of the tank before and had sent others there, and he knew that it had no guard rail and that it was slippery and was, therefore, dangerous; and that he had completed the adjustment of the riser and was engaged in gauging the tank when he slipped and fell.6 The large photograph in evidence shows that the top of the tank was nearly level and that there were ten rows of bolts with large nuts affixed, each row having fifteen bolts.

Singularly, the plaintiff devoted a large part of his proof to an attempt to establish that there was a smell of gas at the tank after he had fallen, intending, evidently, to try to get the benefit of the cases discussed by this Court in Gulf Oil Corp. v. Wright, supra. But there was no proof that Black was subjected to any gas or that he was asphyxiated or otherwise debilitated by the presence of gas, if there was any gas present at the time he fell. In fact, he testified in detail to the events attending his fall. Additionally, it is worthy of note that the careful enumeration in his complaint of the facts he relied upon as establishing Sinclair's negligence did not mention gas.

No good purpose would be served by the detailed recital of the facts of this case, because they are clearly no stronger, probably not as strong, in Black's favor as the other cases mentioned. We think that, under the law as developed by the courts of Texas, and as applied by us repeatedly in recent years, the court below was required to direct a verdict in favor of Sinclair. Its action in so doing is

Affirmed.