Foster v. Steed

• Decision Date: 26 September 1967
• Docket Number: No. 10685,10685
• Citation: Foster v. Steed, 19 Utah 2d 435, 432 P.2d 60 (Utah 1967)
• Court: Utah Supreme Court
• Parties: d 435 Don FOSTER, Plaintiff and Respondent, v. Elmo J. STEED, an Individual, Gordon G. Wheeler, an Individual, Elmo J. Steed and Gordon G. Wheeler, dba S & W Texaco Service, a partnership, Defendants, Texaco, Inc., a corporation, Defendant and Appellant.

Page 60

432 P.2d 60

19 Utah 2d 435

Don FOSTER, Plaintiff and Respondent, v.Elmo J. STEED, an Individual, Gordon G. Wheeler, an Individual, Elmo J. Steed and Gordon G. Wheeler dba S & W Texaco Service, a partnershipDefendantsTexaco, Inc., a corporation, Defendant and Appellant.

No. 10685.

Supreme Court of Utah.

Sept. 26, 1967.

Ray, Quinney & Nebeker, Stephen B. Nebeker, Salt Lake City, for appellant.

Clyde, Mecham & Pratt, Roland R. Wright, Salt Lake City, for respondent.

CALLISTER, Justice:

This is an interlocutory appeal by Texaco, Inc., one of the named defendants, from a denial by the trial court of its motion for summary judgment.

Plaintiff, Don Foster, went to the S & W Texaco Service Station, located in Bountiful, Utah, to purchase gasoline for his truck.Gordon G. Wheeler, a partner in the service station, and Bob Madall, an employee, requested Foster's aid in pushing a car into one of the bays of the station.Foster was further asked to pour gasoline into the carburetor, while Wheeler was blowing air into the gas tank and Madall was starting the car.While the gas was being poured, the motor backfired and ignited the fuel.The flaming fuel set Foster on fire; as he jumped back he tripped on a pan filled with gasoline used to clean parts; this also ignited and burned Foster.

Foster filed an action for damages against Steed and Wheeler, individually and as partners and against Texaco.Subsequently, depositions were taken by all the parties.Texaco filed a motion for summary judgment on the basis that Steed and Wheeler operated the S & W Texaco Service Station as independent contractors and not as agents of Texaco and, therefore, it was not liable for the tortious conduct alleged to have caused Foster's injuries.The trial court denied the motion on the grounds that it cannot be said that there was no genuine issue as to any material fact or facts concerning the relationship between Texaco and the other defendants in the operation of the service station, and that in the opinion of the court, additional factors helpful in determining the issue can be more fully developed by evidence and testimony upon trial.

In the instant case, all of Texaco's witnesses testified that it did not set the hours of operation, or control the hiring or firing of personnel, require reports, or prevent puchasing products from other sources.

On the other hand, Foster contends that the following evidence discloses sufficient factual issues to warrant a trial.Texaco had responsibility for making certain the building was properly maintained, and its representatives conducted inspections of the premises.It further effected the needed repairs after the fire.Wheeler and others were encouraged to wear the Texaco uniform and to identify with its products.The only pumps in the station bore the Texaco trademark, and the sale of any other product under the Texaco trademark was forbidden.The manner and nature of delivery of products was under the control of Texaco, and it was customary for the operators to buy all items for sale from Texaco.The company had established criteria for obtaining operators for their stations, and the operators attended a school where they received instructions on marketing, operations, and safety.All documents evidencing the relationship of the parties were prepared by Texaco on standard forms.

Further, there was a large Texaco sign on the premises, and another sign read 'S & W Texaco Service.'The format and design of the station were in accord with Texaco standards.The lease between Steed and Wheeler, lessees, and Texaco, lessor, required the former to keep the premises in a clean, safe, and healthful condition, and further provided that the lessor can terminate if the lessees breach its covenants or upon certain specified conditions.

Foster contends that the foregoing facts, taken together, create a jury question, and that a jury would be acting reasonably in finding Texaco liable based upon the full extent of the relationship and involvement of the company.

In Leininger v. Stearns-Roger Manufacturing Co., ¹this court stated:

* * * Summary judgment is not a substitute for trial but is rather a judicial search for determining whether genuine issues exist as to material facts.Rule 56,Utah Rules of Civil Procedure, dictates the granting of summary judgment where there is no genuine issue of a material fact.The plaintiff in the instant case has attempted to create factual issues, but the whole purpose of summary judgment would be defeated if a case could be forced to trial by a mere assertion that an issue exists.* * *

Considering Foster's contention in a light most to his advantage and with all the doubts resolved in favor of permitting him to go to trial, has he, nevertheless, failed to establish a right to recover?²This question must be answered in the affirmative.The determination of the status of a service station operator as an agent or employee of the manufacturing or producing company, for whose acts the latter is liable under the doctrine of respondeat superior, or as merely as independent contractor, as to whom no liability exists, has been treated by the courts as governed by the same general principles applicable in determining the existence of such relationship in other situations.

In general, the determinative question has usually been posed as one of 'control', the view being that if the defendant controls, or has the right of control, the manner in which the operations are to be carried out, the defendant is liable as a master, while, if the control extends only to the result to be achieved, the actor is regarded as an independent contractor, and the defendant is liable under neither respondeat superior nor the workmen's compensation statutes.³

A representative case in this area of the law which bears a striking factual similarity, particularly with reference to the relationship between the oil company and the service station operator, to the...