Exxon Corp. v. Tidwell

• Decision Date: 29 July 1991
• Docket Number: No. 05-90-01087-CV,05-90-01087-CV
• Citation: 816 S.W.2d 455
• Parties: EXXON CORPORATION, Appellant, v. Mary TIDWELL and Terry Tidwell, Appellees 1 .
• Court: Texas Court of Appeals

Page 455

816 S.W.2d 455

EXXON CORPORATION, Appellant, v. Mary TIDWELL and Terry Tidwell, Appellees ¹.

No. 05-90-01087-CV.

Court of Appeals of Texas,

Dallas.

July 29, 1991.

Rehearing Denied Sept. 17, 1991.

Jeffrey L. Scharader, William R. Hurt, Peggy O. Donley, Houston, for appellant.

Timothy M. Fults, Dallas, Smith E. Gilley, Greenville, Robert C. Fults, Dallas, for appellees.

Before ROWE, WHITTINGTON and CHAPMAN, JJ.

OPINION

ROWE, Justice.

Exxon Corporation appeals from a judgment rendered in favor of Mary Tidwell and Terry Tidwell in a negligence action. Exxon asserts thirty-eight points of error. We sustain point number thirty-six regarding mental anguish damages awarded to Mary and overrule the remaining points. We reverse that part of the trial court's judgment awarding mental anguish damages to Mary and remand this cause for recomputation of prejudgment interest to be awarded to Mary; in all other respects, we affirm the judgment.

On the evening of November 4, 1987, Terry Tidwell was the only employee on duty at an Exxon service station located at the intersection of Interstate Highway 30 and U.S. Highway 69 in Greenville, Texas. At approximately 10:00 p.m., Terry was shot by Eric Todd Jones in the course of a robbery attempt. Terry was wounded in his mouth and arm.

Terry's mother, Mary Tidwell, filed suit against Jones and Exxon. When the suit was filed, Terry was a minor; he attained majority age during the pendency of the lawsuit. The trial was before the court, and the court filed findings of fact and conclusions of law. Terry obtained a judgment against Jones for damages; Jones is not a party to this appeal. Both Terry and Mary obtained a judgment for damages against Exxon based on negligence, and Exxon has appealed.

In points of error one through thirty-one, Exxon contends that the Tidwells failed to establish that Exxon owed them any duty. Alternatively, Exxon argues that the Tidwells failed to establish the breach of any duty. Many of the points attack the legal and factual sufficiency of the evidence underlying the trial court's findings and conclusions.

The Tidwells, in their first reply point, argue that the judgment should be affirmed because Exxon failed to complain of some findings and conclusions that are adequate to support the judgment. See Able v. Able, 725 S.W.2d 778, 780 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); Schismatic and Purported Casa Linda Presbyterian Church v. Grace Union Presbytery, Inc., 710 S.W.2d 700, 707-08 (Tex.App.--Dallas 1986, writ ref'd n.r.e.), cert. denied, 484 U.S. 823, 108 S.Ct. 85, 98 L.Ed.2d 46 (1987). We disagree. Exxon's numerous points of error do not specify by number the findings and conclusions that are attacked. The Tidwells have nevertheless attempted to specify the findings and conclusions that were and were not attacked. However, when we examine the substance of the various points, we find that they sufficiently attack all of the findings and conclusions necessary to the trial court's judgment. Although some specific findings and conclusions are not directly attacked, other more general findings and conclusions are attacked. We are of the opinion that these general findings and conclusions necessarily encompass all of the more specific findings and conclusions upon which they are based. Accordingly, we address the merits of Exxon's complaints.

Actionable negligence consists of three essential elements: a legal duty owed by one person to another, a breach of that duty, and damage proximately caused by the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); see Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). Duty is the threshold inquiry. El Chico, 732 S.W.2d at 311. The existence of a legal duty under a given set of facts and circumstances is essentially a question of law for the court. Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 65 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.) (op. on mot. for reh'g).

The record shows that Terry Tidwell was employed by Jerry Morgan at the Exxon station that Morgan operated. Exxon owned the real property on which the station was located, and Exxon owned at least some of the equipment located at the station. Exxon, as lessor, leased the property to Morgan, as lessee. Many of the issues at trial involved the degree of control exercised by Exxon with respect to the leased property and Morgan's business operations. Many of the trial court's findings and conclusions are supportive of the ultimate determination that Exxon had rights of control and exercised actual control to the extent that a master-servant relationship existed between Exxon and Morgan.

Although the existence of a legal duty owed by one party to another is essentially a question of law, the issue as to the nature of the relationship between an oil company and a service station operator is ordinarily a fact question involving a determination of who has the right of control over details of the operation. Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 177-78, 222 S.W.2d 995, 997-98 (1949). With respect to the question of the existence of a duty, much can turn on the issue of whether the relationship between the oil company and the station operator is, on the one hand, one of landlord and tenant or independent contractors, or, on the other hand, one of master and servant. See id., 148 Tex. at 177-80, 222 S.W.2d at 997-99; Texas Co. v. Wheat, 140 Tex. 468, 470-74, 168 S.W.2d 632, 633-35 (1943). In the context of a master-servant relationship, an employer owes certain nondelegable and continuous duties to its employees, including the duty to warn employees of hazards of their employment, the duty to furnish a reasonably safe place in which to work, and the duty to furnish reasonably safe instrumentalities with which employees are to work. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975).

If there is to be a duty to provide protection from the criminal acts of a third party committed on certain premises (or a duty to provide protection from other hazards), one of the requisites for imposition of such a duty is the defendant's power of control with respect to the premises and operations on the premises. ² LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563, 564-65 (Tex.App.--Houston [1st Dist.] 1988, no writ); see Robert E. McKee, Gen. Contractor v. Patterson, 153 Tex. 517, 519, 271 S.W.2d 391, 393 (1954). In determining whether a relationship goes beyond that of independent contractors or lessor and lessee, the primary test used involves a determination as to which of the parties to the relationship possesses the right of control over the details of the operation. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964); Texas Co. v. Wheat, 140 Tex. at 473, 168 S.W.2d at 635. The actual exercise of control necessarily presupposes a right of control. Newspapers, Inc., 380 S.W.2d at 590. Accordingly, we examine the record to see if the evidence supports the trial court's findings and conclusions that Exxon had the right of control, and actually exercised control, to the extent that imposition of a duty of reasonable care was warranted.

Exxon attacks both the legal and factual sufficiency of the evidence regarding control. A trial court's findings of fact are reviewed using the same standards as are applied in reviewing the factual and legal sufficiency of the evidence supporting a jury's answers to jury questions. Aerospatiale Helicopter Corp. v. Universal Health Services, Inc., 778 S.W.2d 492, 497 (Tex.App.--Dallas 1989, writ denied), cert. denied, 498 U.S. 854, 111 S.Ct. 149, 112 L.Ed.2d 115 (1990); Creative Mfg., Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.--Fort Worth 1987, writ ref'd n.r.e.); Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.). In reviewing the no evidence points, we are required to consider only the evidence and inferences that tend to support the jury's findings, disregarding all evidence and inferences to the contrary. Jacobs v. Danny Darby Real Estate, Inc., 750 S.W.2d 174, 175 (Tex.1988). A no evidence point should be sustained only when the record discloses one or more of the following: (1) a complete absence of evidence of a vital fact, (2) the only evidence offered to prove a vital fact is barred from consideration by rules of law or evidence, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991). In reviewing Exxon's factual insufficiency points, we must consider and weigh all of the evidence, and we cannot set aside a finding unless it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). Generally, no evidence points should be addressed first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam).

We begin by examining the two contracts entered into by Morgan and Exxon. The parties' lease agreement provides that Morgan was to use and operate the premises only as a service station. The agreement prohibits the sale of food items, beverages, or automotive products (except soft drinks and snack foods from vending machines, candy, ice, and cigarettes) without Exxon's prior written consent. Morgan was also contractually obligated to keep the station open twenty-four hours each day with no exceptions. He was required to keep the premises in a clean, sanitary, and orderly condition in reasonable conformity with guidelines "as may be provided to Lessee by Exxon."

Morgan was prohibited from making additions, changes, or alterations to the internal or external structure of the buildings, improvements, driveways, or equipment provided by Exxon. He could not place additional improvements or equipment on the premises...