McGee v. Phillips Petroleum Co.
| Decision Date | 20 November 1963 |
| Docket Number | No. 5579,5579 |
| Citation | 373 S.W.2d 773 |
| Parties | Kenneth L. McGEE et al., Appellants, v. PHILLIPS PETROLEUM COMPANY, Appellee. |
| Court | Texas Court of Appeals |
John J. Watts, Thomas A. Sneed, James D. Cunningham, Odessa, for appellants.
Carl W. Jones, Midland, James Little and Jack Little, Big Spring, Wm. J. Zeman and Lloyd G. Minter, Bartlesville, Okl., for appellee.
This is a summary judgment case. The trial court rendered a summary judgment in favor of appellee, Phillips Petroleum Company, against appellants, Kenneth McGee and others. Appellants originally instituted suit against Woodrow Douglas Oil Company and appellee Phillips Petroleum Company, but took a non-suit against Douglas following the trial court's action in granting the summary judgment in favor of Phillips, thus making the trial court's order in such respect appealable as a final judgment.
The suit was for damages arising out of a truck-automobile collision which occurred in Ward County on or about July 5, 1960, when a automobile being driven by Shirley McGee (wife of appellant Kenneth L. McGee) collided with a truck being driven by one Floyd Morgan Cawley. Appellant's wife was killed and his three minor daughters sustained personal injuries. Appellants' suit against appellee is based upon the contention that the driver of the truck (Cawley), on the occasion in question, was an agent, sub-agent or employee of Phillips Petroleum Company.
By way of answer Phillips filed a general denial to appellants' petition and then filed its motion for summary judgment asking that it be dismissed from the cause on the grounds that Cawley, the driver of the truck, was not an employee of Phillips and that no circumstances existed which would permit his actions, on the occasion in question, to be imputed to Phillips. Appellee alleged in the motion that Cawley was an employee of the other defendant in said cause--namely, Woodrow Douglas Oil Company, and that at the time of such accident was driving a truck owned by the said Woodrow Douglas Oil Company. Appellee's motion is supported by attached affidavits and a copy of a 'Jobber Sales Contract' admittedly entered into between appellee and Douglas, and it is appellee's contention that such affidavits and exhibits, together with the depositions and pleadings on file, show that there is no genuine issue of fact raised with reference to the responsibility of Phillips for the consequences of the actions of Cawley, the driver of the truck, at the time of such accident, and that it (Phillips) is therefore entitled to a summary judgment dismissing it from this action, as a matter of law.
Appellants filed no opposing affidavits, but replied to appellee's motion for summary judgment, asserting that the evidence in the depositions on file, the provisions of the 'Jobber Sales Contract' between appellee and Douglas Oil Company, the actual conduct of the parties and the condition of the business in which they are engaged establishes that the relationship between appellee and Douglas and its employees is that of a principal-agent relationship, or principal-sub-agent relationship, and/or master-servant relationship, and that a genuine issue of fact exists as to whether or not the negligence of Douglas Oil Company and/or its driver is imputable to Phillips Petroleum Company.
Appeal is predicated upon a single point by which it is contended that the trial court erred in sustaining the motion for summary judgment because the evidence showed that Phillips had the right to control Woodrow Douglas Oil Company and its employees in the details of the work necessary to be performed in the conduct of the business, thus rendering Phillips liable for the negligent acts of the driver Cawley on the occasion of the collision in question.
Since this is a summary judgment action under Rule 166-A, Texas Rules of Civil Procedure, we are governed by wellestablished principles announced by the Supreme Court of Texas in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Thus when Phillips Petroleum Company, as defendant in the court below, moved for summary judgment it assumed the negative burden of showing, as a matter of law, that appellants have no cause of action against it. Neigut v. McFadden, Tex.Civ.App., 257 S.W.2d 864; Statham v. City of Tyler, Tex.Civ.App., 257 S.W.2d 742; Achterberg v. Gillett, Tex.Civ.App., 322 S.W.2d 306; Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534; Glasgow v. Floors, Inc. of Texas, Tex.Civ.App., 356 S.W.2d 699.
The undisputed facts, disclosed by the record before us, reflect that Floyd Morgan Cawley was the driver of the truck on the occasion of the accident in question; that the truck was owned by Woodrow Douglas Oil Company, and that Cawley was in the general employment of such company at the time of the accident. The truck in question was a semi-trailer tank truck with the name 'Phillips 66' lettered on the tank trailer portion of the truck. It is also undisputed that Woodrow Douglas Oil Company had a written contract with Phillips Petroleum Company. The contract is in evidence. It is identified as a 'Jobber Sales Contract'; is for a primary term of one year (from March 6, 1960 to March 5, 1961), and for successive periods of one year each thereafter, or until either party shall notify the other, in writing, at least 90 days prior to the expiration of the primary term or of any succeeding one-year period, of its desire to terminate the contract; it provides that during the term of the contract Phillips Petroleum Company (Seller) agrees to sell and Woodrow Douglas Oil Company (Buyer) agrees to purchase from Seller, within specified minimum and maximum monthly limits, certain petroleum products. The contract is clearly one of sale and not one of consignment. The terms of payment provide that Buyer shall be entitled to one per cent discount on the net invoice price for payments made in full within ten days from the date of the invoice, but provides that Seller shall have the right to decline to make delivery of its petroleum products to Buyer except for cash payable upon delivery whenever Seller shall have any doubt as to Buyer's financial responsibility. Other provisions of the contract give Seller 'first refusal' of the right to purchase, lease or otherwise acquire Buyer's petroleum products business and/or properties in whole or in part should Buyer receive a bona fide offer therefor which Buyer desires to accept. Buyer is required to give Seller notice of the terms and conditions of the offer if it desires to accept, and Seller shall have 30 days thereafter in which to exercise its option to purchase, lease or otherwise acquire the business and/or properties on the same terms of such proposal. Buyer agrees to protect the brand or trade names of Seller's petroleum products and to sell such products under the respective brand names only, it being provided that in the event of any violation of the 'brand protection' clause of the contract Seller shall have the right to terminate the contract immediately without notice, or suspend shipment of...
To continue reading
Request your trial
-
Gaddis v. Smith, A--11825
...v. Texas & New Orleans Railroad Company, 381 S.W.2d 90 (Tex.Civ.App.1964, writ ref'd n.r.e.); McGee v. Phillips Petroleum Company, 373 S.W.2d 773 (Tex.Civ.App.1963, writ ref'd n.r.e.). All doubts as to the existence of a genuine issue as to a material fact are resolved against respondents. ......
-
Greenberg v. Mobil Oil Corporation
...Mid-Continent Freight Lines, Inc. v. Carter Publications, Inc., Tex.Civ.App., 336 S.W.2d 885, writ refused; McGee v. Phillips Petroleum Company, Tex.Civ.App., 373 S.W.2d 773, err. ref. n. r. e.; Newspapers, Inc. v. Love, Tex.S.Ct., 380 S.W. 2d 582. The evidence in this case conclusively est......
-
Exxon Corp. v. Tidwell
...v. Aetna Casualty & Sur. Co., 449 S.W.2d 818 (Tex.Civ.App.--Houston [14th Dist.] 1970, no writ); McGee v. Phillips Petroleum Co., 373 S.W.2d 773 (Tex.Civ.App.--El Paso 1963, writ ref'd n.r.e.); Hayes v. The Travelers Ins. Co., 358 S.W.2d 254 (Tex.Civ.App.--Waco 1962, writ ref'd); Gulf Ref. ......
-
Clark v. Texaco, Inc.
...Sinclair Oil & Gas Co., Tex.Civ.App., 249 S.W.2d 102; Hayes v. Travelers Ins. Co., Tex.Civ.App., 358 S.W.2d 254; McGee v. Phillips Petroleum Co., Tex.Civ.App., 373 S.W.2d 773. But an entirely different situation is presented when we consider Beckett's status while he was handling the Clark ......