Fruchter v. Lynch Oil Co.

• Decision Date: 03 February 1988
• Docket Number: No. 57334,57334
• Citation: 522 So.2d 195
• Parties: Elaine G. FRUCHTER, v. LYNCH OIL COMPANY.
• Court: Mississippi Supreme Court

Page 195

522 So.2d 195

Elaine G. FRUCHTER, v. LYNCH OIL COMPANY.

No. 57334.

Supreme Court of Mississippi.

Feb. 3, 1988.

Rehearing Denied April 13, 1988.

S. Allan Alexander, Patterson, Tollison & Alexander, Oxford, for appellant.

H. Scot Sgragins, S.T. Rayburn, Sumners, Hickman & Rayburn, Oxford, for appellee.

Before HAWKINS, P.J., and ROBERTSON and GRIFFIN, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's personal injury case turns on the rule of respondeat superior. The Circuit Court summarily resolved the issue against plaintiff after discovery had failed to establish the defendant gasoline distributor's control over its service station operator's employees. On appeal, we have carefully reviewed the record and points of law. We affirm.

II.

A.

Because of our procedural posture we state the facts favorably to the Plaintiff-Appellant.

Elaine G. Fruchter was a dancer and choreographer at the University of Mississippi. On August 17, 1984, she was filling the tires of her bicycle with air at the By-Pass Shell, a service station operated by Robert E. (Bud) Keel. An automobile drove up to the station side of the pump island. The driver requested a station employee, James (Ike) Leeton, to check the water in the radiator as it had overheated. Leeton noticed Fruchter and asked her to move to the street side of the pumps which she did. Leeton then removed the pressure cap. When he did so, in spite of his ostensibly cautionary instructions to Fruchter, hot water was blown onto her back, shoulders, neck and right arm causing severe and painful burns. Fruchter alleges temporary and permanent personal injuries.

Fruchter has sued Keel d/b/a By-Pass Shell and, as well, Lynch Oil Company. Lynch Oil's relationship to what happened August 17 is our primary concern this day.

Lynch Oil Company is a closely held family corporation chartered in the state of Mississippi. The company serves as a distributor for Shell Oil Company, among other businesses. By-Pass Shell Service Station is situated on South Lamar Avenue just north of the Highway 6 Bypass. The real property and improvements at By-Pass Shell are owned by George Lynch, Jr., and George Lynch, III, both stockholders in Lynch Oil. The underground gas reservoirs and the pumps at By-Pass Shell are owned by Lynch Oil.

Lynch Oil has owned or controlled the land, ground and buildings of By-Pass Shell for more than fifteen years but has never operated the gas station. Rather, Lynch Oil leases the pumps, tanks, land and building to the operator who under an oral agreement pays $1,000 a month and purchases gasoline daily. The operator "sets his own prices," "hires his own people," "buys gas and some oil from [Lynch Oil]," but buys other items, e.g., filters and tires, from whomever. Lynch Oil supplies the station with all gasoline, more or less on a consignment basis, and the operator pays for the gas on a daily basis, keeping as a profit the difference between the wholesale price and the retail price.

Robert E. (Bud) Keel began operating By-Pass Shell in 1983 pursuant to this arrangement. Ike Leeton was employed by Keel who paid his salary and directed his work activities.

Lynch Oil required that Keel keep By-Pass Shell open seven days a week. Beyond this Keel was required to operate the station as a Shell gas station and display only Shell signs. Shell Oil dealt directly with Lynch Oil. All credit card sales were routed through Lynch Oil with credit back from Shell Oil, rather than going directly from By-Pass Shell to Shell Oil.

The oral lease from Lynch to Keel contained no termination provisions. George Lynch, president of the corporation, understood that the corporation could terminate the lease if it was dissatisfied with the way Keel was operating the station and also that it had the right to approve or refuse any sale of the operating business by Keel to a third person. In fact, subsequent to the events involved here, Keel sold the business to Bill Curtis. Curtis came and asked if Lynch would object to doing business with him. "After investigating and thinking about and giving it some thought, I felt like I would [lease the station to Curtis]," Lynch stated. Keel could sell his part to anyone he desired, but it was not a foregone conclusion that Lynch Oil would lease to that person; however, Lynch stated, that problem never came up. In Curtis' case, he bought Keel out before he discussed the lease with Lynch.

While Lynch Oil doesn't pay for the By-Pass' license or utilities, the light bill is in Lynch Oil's name as a big deposit is required. When the bill was first put in Lynch's name, no deposit was required; the lessee, though, pays for all electricity used by writing a check that Lynch sends to the electric company.

B.

Fruchter commenced this civil action by filing her complaint in the Circuit Court of Lafayette County, Mississippi, on March 11, 1985.

Fruchter's amended complaint sought $200,000 and named Bud Keel and Lynch Oil Company as defendants--Lynch Oil in its relationship as principal to agent Keel or, in the alternative, as Keel and Lynch were joint venturers in the operation of By-Pass Shell. Lynch Oil moved for summary judgment on the basis that no principal/agent relationship existed nor was Lynch Oil in a "joint enterprise, venture or partnership" with Defendant Keel.

On January 28, 1986, the Circuit Court granted Lynch Oil's motion and dismissed it from the suit. The Court further certified that there was no just reason for delay of entry of final judgment on the claim against Lynch Oil Company. See Rule 54(b), Miss.R.Civ.P. The case against Keel, of course, remains viable insofar as the record reflects.

The case is now before us on Fruchter's appeal seeking reversal of the judgment entered summarily in favor of Lynch Oil Company.

III.

The core issue is whether Lynch Oil Company had sufficient control over Ike Leeton that Lynch should in law be responsible for Leeton's negligent conduct. The Circuit Court resolved the issue summarily in favor of Lynch Oil. See, Rule 56(c), Miss.R.Civ.P. We may affirm only if we find from the record that on the control question there was no genuine issue of material fact and that Lynch Oil was entitled to judgment as a matter of law. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983).

Construction and enforcement of the provisions of our Rule 56 have been detailed in a number of cases beginning with Brown. Those need not be repeated here. One nuance of recent vintage ought be noted. The burden of producing evidence in support of or in opposition to a motion for summary judgment is a function of our rules regarding the burden of proof at trial on the issue in question. See Galloway v. Travelers Insurance Company, 515 So.2d 678, 683 (Miss.1987). ¹

Our pre-Galloway cases have recognized that Rule 56 does not cast upon the movant any burden of proof beyond that which he would shoulder at trial. What we say is that the movant has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, he is entitled to judgment as a matter of law. See, e.g., Pargo v. Electric Furnace Co., 498 So.2d 833, 835, 836 (Miss.1986); Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986).

We have referred to the movant's burden as one of production and of persuasion, not of proof. Brown v. McQuinn, 501 So.2d 1093, 1095 (Miss.1986); Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985). Celotex and Galloway make clear that this latter point is in need of refinement. The movant has the burden of production only where at trial the movant would have the burden of proof.

In today's case Fruchter at trial would have the burden of proving facts sufficient to establish Lynch Oil's responsibility for Leeton's negligence. She therefore had the burden of production of evidence showing a genuine issue of material fact at the summary judgment hearing. She had the burden of producing evidence which, if believed, would establish Lynch Oil's control of, or right to control, Leeton's work.

This is wholly consistent with our oft stated premise that the party against whom a motion for summary judgment has been made must respond with diligence. She remains silent at her peril. For one thing, the non-movant may not rest upon allegations or denials in her pleadings. Mere allegation of a material fact in one's pleadings is not sufficient to generate an issue of fact sufficient to avoid summary judgment. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986); Hill v. Consumer National Bank, 482 So.2d 1124, 1128 (Miss.1986). Rather, the party opposing the motion must by affidavit or otherwise set forth specific facts showing that there are indeed genuine issues for trial. Matter of Lanius, 507 So.2d 27, 30 (Miss.1987); Smith v. First Federal Savings & Loan Association, 460 So.2d 786, 792 (Miss.1984).

These thoughts in mind, we turn to the law regarding Lynch Oil's alleged liability and then apply that law to the facts before us, viewed most favorably to Fruchter.

IV.

One who acts through another is in law himself the actor. Slaughter v. Holsomback, 166 Miss. 643, 659, 147 So. 318, 322 (1933). If B while acting on A's behalf commits a tort, A may be liable. This is the simple theory on which Fruchter has sued Lynch Oil. She says Lynch Oil acted through Leeton, that Lynch Oil is legally responsible for Leeton's negligence.

Our cases in the field revolve around the idea of control. The right to control is as important as de facto control at the tortious moment, for the right to control the work of another "carries with it the correlative obligation to see to it that no torts shall be committed" by the other in the course of the work. White's Lumber & Supply Co. v. Collins, 186 Miss. 659, 672, 191 So. 105, 106 (1939). Our question thus is not what Lynch Oil did but what it may have done on August 17, 1984. Kisner v. Jackson, 159 Miss. 424, 430, 132 So. 90, 92 (19...