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Boon v. Plains Transp, Inc.
March 29, 2000
Unpublished Opinion

Boon v. Plains Transp, Inc.

Court of Appeals of Texas, El Paso.

Gail BOON and Albert Milner, Appellants,



No. 08-00-00202-CV.


March 29, 2000.

Appeal from the 205th Judicial District Court of El Paso County, Texas, (TC # 95-15297).

Before CHEW, JJ.



*1 This is an appeal from a directed verdict on a wrongful discharge claim and a defamation claim. For the reasons stated, we affirm.


In November, 1992, Appellants, Gail Boon and Albert Milner, entered into contracts with Appellee, Plains Transportation, Inc., in which Appellants agreed to transport goods and merchandise for Appellee. The agreement stated that the relationship was one of independent contractors. The agreement further provided that Appellants were responsible for their own liability and workers’ compensation insurance, were to pay their own expenses, and were to furnish their own drivers, if necessary. Under the agreement, the relationship between the parties could terminate early if either party committed a material breach of any term of the agreement. In March, 1995, the parties entered into a new agreement that, among other changes, altered the termination provision to allow for termination by mutual agreement or unilateral termination with thirty (30) days’ notice.

On May 9, 1995, after arriving back in El Paso from separate trips, Appellants spent the evening together partying and drinking in Boon’s mother’s Jacuzzi. Boon testified that she purchased a bottle of Scotch and a bottle of Jim Beam at the request of Milner. Boon stated that she consumed four or five drinks of Scotch and that Milner had three larger size drinks over a three hour period. The next morning, Boon called the office to inquire about her schedule for the day. She was informed that she needed to report to the main office for a drug test. After arriving at the testing center, Boon learned that she was taking an alcohol test. She registered a .039 on the breathalyzer. On May 12, 1995, Appellee fired Boon because she failed the alcohol test. A few weeks later, Milner quit working for Appellee.

In December, 1995, Appellants filed suit against Appellee alleging wrongful discharge, insurance code violations, defamation of Boon, and seeking an accounting on their commissions. The trial court granted Appellee’s motion for directed verdict on the wrongful discharge and insurance code violations claims. The jury awarded Boon $5,491.91 on her two accounting claims and awarded Milner $6,833.71 on his two accounting claims. Additionally, the jury found that Appellee slandered Boon, but that Boon authorized, invited, or consented to the publication. The jury awarded Boon $166,000 on the defamation claim, but the trial court entered judgment only as to the accounting and attorney’s fees claims.


Appellants present four issues on appeal attacking the directed verdicts. In Issue One, Appellants argue that the trial court “incorrectly assumed that ‘owner operators’ who work for trucking firms can be discharged with impunity for refusing to commit crimes, unless they prove that they were actually employees.” Appellants urge this Court to extend the Sabine Pilot exception to include independent contractors. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). Both parties concede this is a matter of first impression. Appellee argues that the Sabine Pilot exception is a very narrow one that applies only to at-will employees. We agree.

*2 The Sabine Pilot decision created a very narrow exception to the employment-at-will doctrine announced in Sabine Pilot, 687 S.W.2d at 735. The Court stated that the “narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act.” Id. Appellants ask this Court to find that the “leverage” that business entities hold in employment relationships should trigger the applicability of the public policy exception, rather than the technicality of employee/independent contractor status. Appellants were independent contractors who were employed for a specified term under the Service Agreement. Unlike an employee-at-will, who can be terminated for any reason, Appellants could terminate their relationship with Appellee by mutual agreement, upon a breach, or unilaterally with thirty (30) days’ written notice. Appellants were not placed in the position of losing their job if they refused to violate the law. For example, under the terms of the agreement, both parties were required to abide by all safety regulations enumerated in the agreement. Appellants could terminate their relationship with Appellee if Appellee violated any of the safety regulations or materially breached the agreement in any other way. For these reasons, we decline to expand the narrow Sabine Pilot exception to independent contractors. Issue One is overruled.

Directed Verdict

A directed verdict is proper: (1) when a defect in the opponent’s pleadings makes them insufficient to support a judgment; (2) when the evidence conclusively proves a fact that establishes a party’s right to judgment as a matter of law; or (3) when the evidence offered on a cause of action is insufficient to raise an issue of fact. See ITT Consumer Fin. Corp., 932 S.W.2d at 160.

*3 In Issue Two, Appellants claim that even assuming the necessity of employee status, the trial court erred in concluding, as a matter of law, that they presented no evidence of such status.

An independent contractor is one “who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details.” Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 220 (Tex.App.-Houston [14th Dist.] 1994, no writ). Factors used in determining whether a party is an independent contractor are:

(1) the independent nature of the contractor’s business;

(2) his obligation to supply necessary tools, supplies, and materials;

(3) his right to control the progress of the work except as to final results;

(4) the time for which he is employed; and

(5) the method by which he is paid, whether by the time or by the job.

806 S.W.2d 222 (Tex.1991)).

The record in the instant case demonstrates that Appellants entered into a Service Agreement with Appellee which stated in pertinent part that, “IT IS THE INTENTION OF THE PARTIES THAT CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR WITH RESPECT TO CARRIER. As noted previously, the agreement also provided that Appellants were responsible for their own liability and workers’ compensation insurance, were to pay their own expenses, were to furnish their own drivers, if necessary, and allowed Appellants to “determine the method, means and manner of performance of this agreement including, but not limited to, such matters as choice of routes, points of service of the subject equipment, and rest stops.”

Appellants brought their own trucks into the business and were responsible for all costs. They were paid a commission on each run, rather than a fixed salary. Under the original agreement, Appellants were employed for a term of twelve (12) consecutive months. Under the March, 1995 agreement, the parties could terminate by mutual agreement, upon a breach, or unilaterally with thirty (30) days’ written notice. Both Appellants considered themselves independent contractors for tax purposes. Milner paid his own self-employment and social security taxes and claimed a deduction on his income taxes for the expenses associated with his truck. Boon also paid her own self-employment taxes and social security taxes and represented to the Internal Revenue Service that she was an “owner/operator” while working for Appellee. Boon testified that she was responsible for all of her costs, and claimed deductions on her tax returns for some of them. Appellee did not withhold any amounts from Appellants’ checks for federal income tax or social security.

*4 In considering all of the evidence in a light most favorable to Appellants, the undisputed evidence establishes that Appellants were independent contractors. There was no evidence of probative force presented to allow for any inference other than the fact that Appellants were independent contractors. The trial court properly concluded that Appellants were not employees. Issue Two is overruled.

In Issue Three, Appellants argue that the trial court erroneously concluded that Milner presented no evidence of constructive discharge. Having found Milner was an independent contractor rather than an employee, Milner cannot avail himself of the Sabine Pilot exception to the employment-at-will doctrine. Issue Three is overruled.

In Issue Three, Appellants argue that the trial court erroneously concluded that Milner presented no evidence of constructive discharge. A constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. See Whisenhunt v. Spradlin, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983)).

Milner claimed that he was stuck on Appellee’s lowest paying run and was denied the higher paying runs. Milner testified that Appellee’s dispatcher, Jerry Ciriza, told him as early as 1994 to quit because “the writing is on the wall.” However, Milner admitted he quit working for Appellee in May, 1995. He also admitted that he never turned down a run for Appellee. Considering all of the evidence in the light most favorable to Milner, we conclude that the trial court did not err in directing a verdict on his wrongful discharge claim. Issue Three is overruled.

Jury Instruction

In Issue Four, Appellants claim the trial court erred in holding consent to be a valid defense in a defamation case based on compelled self-publication, where the self-publication is compelled by Federal law. Appellee argues that the compelled self-publication doctrine is inapplicable in this case because it was not part of the charge, it is not the law in Texas, and even if it were the law in Texas, Boon admittedly knew the defamatory implications of the communication.

TEX.R.CIV.P. 274. Trial counsel for Appellants made the following objection to the charge:

On behalf of the plaintiff, Your Honor, I wish to state my formal objection to the submission of issue Number 5, question Number 5, authorization, invitation or consent.

I want to-in connection with that objection, I want to direct the Court’s particular attention to Plaintiffs’ Exhibit 1, page 1-18 through 1-21. This is the DOT standard form job application listing prior employment and authorizing contact with prior employers. That’s the DOT standard form.

*5 That follows the regulation, trying to reproduce for the Court and jury, at page 8-3 of our exhibit notebook, 49 CFR, Section 383.35, notification of previous employment. The employee applying for employment is not only required to list all prior employments and reason for leaving same, he is-she is also required to certify that the information is true and complete. So this can’t be omitted.

She is-and she must also be informed that her previous employers may be contacted. That’s in the regulations. So there is no invitation. It is all done by regulation.

And I think the testimony of Janie Martin bears this out, that this consent is required in all applications. So with that-I am not expecting you to go change the instruction, I know it’s-you know, this is what we are going to argue to the jury, and I will sit down and shut up. But I want to state that.

Those are the same arguments I made to you yesterday, when we were off the record, so I just wanted to make that on the record.

The trial court overruled his objection to the submission of question Number 5. We find trial counsel’s objection sufficient to preserve this issue for appeal.

Under the doctrine of self-compelled publication, which may negate consent to publication, a plaintiff may recover for slanderous statements to which he has consented only if circumstances indicate defamatory communication to a third party is likely or a reasonable person would recognize the unreasonable risk of such communication. See Chasewood Constr. Co. v. Rico, 696 S.W.2d 439, 444-46 (Tex.App.-San Antonio 1985, writ ref’d n.r.e.). We note that this doctrine has not been recognized by all of the Texas courts, including the Texas Supreme Court and this Court.

The record reflects that Boon told several of her friends in the trucking business that she was fired because she failed an alcohol test. Milner also told his friends that Boon failed the test. Boon testified that she knew that the statement that Appellee fired her for testing positive for alcohol would damage her. Furthermore, Boon signed a waiver permitting National Carriers, a prospective employer, to contact Appellee. Milner also told an acquaintance at National Carriers that Boon was released because she did not pass a random breathalyzer. Under these facts, we refuse to adopt the doctrine of compelled self-publication and overrule Issue Four.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.

End of Document