McMoris v. Sheppard
| Decision Date | 08 July 1975 |
| Docket Number | No. 6867,6867 |
| Parties | Oliver McMORIS v. Wayland SHEPPARD d/b/a Spur Service Station and Murphy Oil Corporation. |
| Court | Court of Appeal of Louisiana — District of US |
Scheuermann & Jones, Arthel J. Scheuermann, New Orleans, for plaintiff-appellant.
Chaffe, McCall, Phillips, Toler & Sarpy, Peter A. Feringa, Jr., New Orleans, for defendant-appellee Murphy Oil Corp.
Before REDMANN, LEMMON and BEER, JJ.
Plaintiff, who was injured while working at a service station operated by Wayland Sheppard, has appealed from a summary judgment which dismissed Murphy Oil Company from his suit for workmen's compensation benefits. The sole issue on appeal is whether, on the affidavits submitted in favor of and in opposition to the motion, Murphy is entitled as a matter of law to a judgment declaring that it is not a principal under R.S. 23:1061. 1
By written contract designated as a 'Consignment Dealer Agreement', Murphy had appointed Sheppard 'to operate Murphy's gasoline station'. The contract entitled Sheppard to possession of the building and equipment for purposes normally connected with the operation of a service station, the rental price being a fixed charge for each gallon of gasoline sold. The contract further required Murphy to furnish gasoline on consignment and obliged Sheppard to keep the station open 24 hours each day, to diligently promote the sale of Murphy products, and to comply with workmen's compensation laws.
In support of its motion for summary judgment Murphy filed the contract attached to an identifying affidavit, which also asserted that Sheppard had exclusive control over operation of the station. Plaintiff's counter affidavit, executed by Sheppard, alleged that Murphy exercised control of the operation in the several particulars spelled out in the contract and also controlled the retail price of the gasoline.
The legal conclusion as to whether Murphy was a principal under R.S. 23:1061 turns on the determination of the issue of whether the work performed by Sheppard was part of Murphy's trade, business or occupation. The question as to whether the work performed by the contractor is part of the principal's business is an issue of fact, to be decided on the evidence presented to the trier of fact. 2 The summary judgment procedure, which was not designed for deciding issues of fact, is therefore seldom appropriate for making such a decision.
Of course, if there is no countervailing evidence on a factual...
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Crenshaw v. Service Painting Co.
... ... McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975); Berthelot v. Travelers Insurance Company, 304 So.2d 59 (La.App. 1st Cir. 1974). The summary ... ...
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Butler v. Atwood
...business, is an issue of fact and consequently summary judgment is seldom appropriate for its resolution. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975.) Where appropriate, however, courts have not hesitated to utilize it. Barnes v. Sun Oil Co., 358 So.2d 655 (La.App. 1st Cir. 1......
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Fontenot v. Andrus Homes, Inc.
... ... McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975). Where appropriate, however, courts have not hesitated to utilize it. Barnes v. Sun Oil Co., 358 ... ...
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Sanders v. City of Blanchard
...of fact must weigh conflicting evidence in order to reach a conclusion upon which reasonable men could differ. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir.1975). In short, a summary judgment is no substitute for a trial on the merits. Millet v. Johnson, 381 So.2d 1293 (La.App. 4th C......