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.

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.

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 the former's negligence.7 The relationship required by the Texas substantive law for this purpose is the relationship of master and servant. As the court stated in National Cash Register Co. v. Rider, 24 S.W.2d 28, 30-31 (Tex.Comm'n App.1930, holdings approved):

"[T]he essential question to be determined is whether the employer had the right to exercise control over the details of the work.

"...

"It is not essential that the right be exercised. The real question is whether the right existed. The fact that Weeks was acting within the scope of his employment in performing an act for his master's benefit is, of course, a necessary one to be found in addition to the fact that the relationship of master and servant existed. In other words, these two facts must be found to have an existence in order to hold the master liable for the negligent act of the servant."

Similarly, in American National Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 372 (1936), the court specifically approved the Rider case and stated the rule that

"a master is liable for acts of his agent under the doctrine of respondeat superior only where the relationship of master and servant exists at the time...." (Emphasis added.)

Of course, as Rider, Denke, Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex.Sup.Ct.1964), and a host of other Texas decisions make abundantly clear, "right of control" is an essential component of the master-servant relationship. Accordingly, at the beginning of trial this is an issue on which the plaintiff has both the burden of persuasion and the burden of going forward with evidence. Where the plaintiff thereafter introduces evidence that the person alleged to be the defendant's servant was performing the defendant's work at the time in question, the presumption thereupon arises that the relationship of master and servant then existed, the burden of producing evidence is hence shifted to the defendant, and, if evidence is not introduced showing the relationship to be otherwise, that issue is conclusively established in the plaintiff's favor (just as it would be if the plaintiff proved by undisputed evidence that the contract between the parties gave the defendant the right of control).8 But, under the foregoing principles, although the burden of production has shifted from the plaintiff to the defendant, the burden of persuasion never shifts, but remains where it was at the beginning of trial, on the plaintiff.

The same result obtains when we consider, as the Texas courts do, that proof that the alleged servant was performing the defendant's work at the time in question creates a "presumption" that the relationship of master and servant then existed. See Taylor, B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868, 870 (1895); Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416, 418 (1936); Hastey v. Humphries, 576 S.W.2d 159, 162 (Tex.Civ.App.--Amarillo 1978, writ ref'd n.r.e.). What is the effect of such a "presumption" on the burden of persuasion, as distinguished from the burden of going forward with evidence?9 Certainly the general rule is that although a presumption shifts the burden of going forward with evidence, it does not shift the burden of persuasion. We again turn to Ray for a clear statement of the relevant Texas rule:

"Or to put it as most courts do, the presumption places upon the party against whom it operates the burden of producing evidence sufficient to justify a finding of non-existence of the presumed fact. This view has been adopted by the new Federal Rules of Evidence and is the established rule in Texas. It has the distinct merit of being easily understood and easily applied during the trial of a case. Under this rule where the opponent produces sufficient evidence to justify a finding against the presumed fact the presumption vanishes and the situation is the same as it would have been had no presumption been created. Further, the evidence which gave rise to the presumption remains to be weighed by the trier and accorded its full probative value, the same as if no presumption had been recognized.

"A necessary corollary of the rule that the sole effect of a presumption is to fix the burden of producing evidence is that a presumption can have no effect on the burden of persuasion. This view supported by the authority of Thayer and Wigmore has been accepted by most courts including those of Texas." Ray, Sec. 53 at 76-79 (footnotes omitted; emphasis added).10

Moreover, since on the introduction of evidence sufficient to sustain a finding contrary to the presumption,11 the presumption "cannot stand," Eagle Trucking Co. v. Texas Bitulithic Co., 590 S.W.2d 200, 212, rev'd in part on other grounds, 612 S.W.2d 503 (Tex.Sup.Ct.1981); Hastey v. Humphries, 576 S.W.2d at 162, and "vanishes" from the case, Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767 (1940); Ray, Sec. 53 at 77, so that there is thereafter "no presumption aiding the plaintiff," Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 358 (Tex.Sup.Ct.1971), how can such a presumption--which is no longer operative or even present--change or affect in any way the burden of persuasion? Of course, it cannot. In these circumstances, "the case will proceed as if no presumption exists." Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 806 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Obviously, then, the presumption, though it changes the burden of going forward with evidence, has no effect on the burden of persuasion.12

In City of Houston v. Wormley, 623 S.W.2d 692, 694 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.), the court considered the "presumption [which] arises that the driver was acting within the scope of his employment by the defendant when it is proved that the employer owned the vehicle and employed the driver." As to that presumption, which is clearly very similar to the presumption involved here, the court observed that it "disappears from the case" when rebutted by positive contrary evidence and, most significantly:

"The plaintiff retains the burden of proof throughout the trial, and it is only the burden of going forward which shifts as a result of the presumption."

Id. at 694.

Finally, as we have noted, the existence of a master-servant relationship is a necessary part of the plaintiff's case when recovery is sought on a respondeat superior theory, and in that regard "the essential inquiry is whether or not the employer has the contract right to control the opposite contracting party in the details of the work to be performed." Newspapers, Inc. v. Love, 380 S.W.2d at 591. Such a right to control is a prerequisite of the master-servant relationship.13 Conversely, the absence of such a right of control is a prerequisite of an independent contractor relationship. Master-servant and independent contractor are thus opposite sides of the same coin; one cannot be both at the same time with respect to the same activity; the one necessarily negatives the other, each depending on opposite answers to the same right of control inquiry. It logically follows that "independent contractor" status is an inferential rebuttal of the "master-servant" status which is necessary to the imposition of vicarious respondeat superior liability. This was expressly recognized by the Texas Supreme Court in Newspapers, Inc. v. Love, 380 S.W.2d at 585, where the court stated:

"Special Issue No. 2 was an inferential rebuttal issue embodying petitioner's [defendant's] theory that Cargile [the negligent individual alleged to be defendant's servant] was an independent contractor." (Emphasis added.)

It is settled in Texas that the burden of persuasion on inferential rebuttals--that is to say, on factual theories of the case which are inconsistent with the elements of the plaintiff's cause of action--is on the plaintiff. See, e.g., Dallas Railway & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550, 552 (1948); Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790, 793 (1941); Heard & Heard v. Kuhnert, 155 S.W.2d 817, 820-21 (Tex.Civ.App.--San Antonio 1941, no writ). As stated in Hodges, Special Issue Submission in Texas (1959):

"It is well established that where defendant asserts a fact inconsistent with some essential element of plaintiff's cause of action the burden should be placed upon the plaintiff to secure a finding favorable to him on the issue submitting the rebutting fact, because the rebutting fact constitutes a denial of the plaintiff's cause of action." Id. Sec. 32 at 90-91 (footnote omitted).14

It comes as no surprise, then, that the crucial special issues in Love --which are set out in full in the Supreme Court's opinion--placed the burden of persuasion on the plaintiff both to establish the master-servant relationship and to negative the independent contractor relationship. Since the Supreme Court's opinion concerned itself with the wording of these issues, and since they were quoted in full in the opinion, it seems evident that if they misplaced the burden of persuasion the Supreme Court would have at least made some comment or disclaimer in that regard. Plainly, however, it regarded the form of the issues as wholly unremarkable in this respect. The reason for this is obvious from the opinion--the court expressly recognized that the independent contractor issue was a defendant's inferential rebuttal issue. As above-noted, on such an issue the plaintiff has the burden of persuasion.

Neither of the parties have cited, nor has our research disclosed, any Texas decisions that are directly in point.15 The Supreme Court's opinion in Love, and that of the Court of Civil Appeals in Wormley, come the closest. The cases relied on by Simpson, and some of those cited in note 5, supra, do use the term "burden of proof" or "burden of proving," but, as we have seen, this is a term used in two different senses. The question on appeal in all those cases, and the question which those opinions purported to address in employing the "burden" terminology, was the burden of production, not of persuasion. See supra note 5. These are very different concepts in Texas law.

An extension of these cases to cover the burden of persuasion should be rejected because as applied to the issue before us any such extension would be inconsistent with three fundamental, generally applicable principles of Texas law respecting the burden of persuasion: (1) the burden of persuasion does not shift; (2) presumptions do not affect the burden of persuasion; (3) with respect to a defendant's inferential rebuttal assertion, the burden of persuasion is on the plaintiff. We can discern no basis under Texas law in principle or authority to create a special exception for respondeat superior cases. The district court properly placed upon Simpson the burden of proving that Weems was not Home's independent contractor.

The judgment of the district court is AFFIRMED.