O'Neill v. Startex Petroleum, Inc.

• Decision Date: 13 August 1986
• Docket Number: No. 14473,14473
• Citation: 715 S.W.2d 802
• Parties: Dennis O'NEILL, Appellant, v. STARTEX PETROLEUM, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 802

715 S.W.2d 802

Dennis O'NEILL, Appellant, v. STARTEX PETROLEUM, INC., et al., Appellees.

No. 14473.

Court of Appeals of Texas Austin.

Aug. 13, 1986.

Rehearing Denied Sept. 24, 1986.

Timothy M. Sulak, Morris, Craven & Sulak, Austin, for appellant.

Michael G. Mullen, Brown, Maroney, Rose, Barber & Dye, Austin, for appellees.

Before SHANNON, C.J., and GAMMAGE and CARROLL, JJ.

GAMMAGE, Justice.

Dennis O'Neill sued Stacy Oliver, Startex Petroleum Corporation (incorrectly named "Startex Petroleum Inc." in O'Neill's pleadings), and Theodore LaTouf d/b/a "Ted's Quikie Pickie" to recover damages for injuries O'Neill suffered during an armed robbery of the gasoline station and convenience store ("the premises") where he worked. The trial court severed all claims against Startex and Oliver and granted summary judgment in their favor, and O'Neill brought this appeal. We will reverse the judgment and remand the cause to the trial court.

Oliver was president and sole stockholder of Startex. Oliver owned the premises and leased them to Startex, which subleased them to LaTouf. The sublease agreement required LaTouf to operate the business under Startex's trade name, "Quikie Pickie". In August 1982, LaTouf hired O'Neill to work at the business. On September 12, 1982, Ted's Quikie Pickie was robbed and O'Neill was shot. O'Neill subsequently underwent surgery and has suffered permanent disability. Because neither LaTouf nor Startex carried workers' compensation insurance at the time of the robbery, O'Neill brought this suit as a common law action for negligence.

Summary judgment is a harsh remedy which must be strictly construed. International Ins. v. Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex.App. 1983, no writ). It is proper only when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law...." Tex.R.Civ.P.Ann. 166-A(c) (Supp. 1986); McFadden v. American United Life Ins. Co., 658 S.W.2d 147, 148 (Tex. 1983). In determining whether there is a genuine issue of fact in a case, the evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Gaines v. Hamman, 358 S.W.2d 557, 562 (Tex. 1962). The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against the movant. Smith v. University of Texas, 664 S.W.2d 180 (Tex.App.1984, writ ref'd n.r.e.).

By his first two points of error, O'Neill asserts that the trial court erred in granting summary judgment for Oliver and Startex (hereinafter collectively referred to as "Startex") because genuine issues of material fact exist regarding Startex's right to control the use of the premises and operation of the business. The retention of such right to control would impose upon Startex a duty of reasonable care to make the premises safe or warn employees of dangers inherent on them.

The contract between the oil company/landowner and the service station operator must be examined to determine the nature of the relationship between them. If the relationship is one of landlord and tenant, the landlord generally owes no duty to the tenant's employee; if on the other hand, it is that of master and servant, the master owes a duty of ordinary care. In Texas Company v. Wheat, 168 S.W.2d 632 (Tex. 1943), the Supreme Court held that the existence of a master-servant relationship depends on whether the owner has the right to control the details of the work to be performed in the operation of a service station. In Wheat, the court determined that the evidence established a landlord-tenant relationship, not one of master and servant, and refused to hold the oil company liable for personal injuries suffered by a pedestrian who fell on an oily sidewalk in front of the station.

In Humble Oil & Refining Co. v. Martin, 222 S.W.2d 995 (Tex. 1949), the Supreme Court analyzed a lease agreement between the oil company lessor and the lessee and found the existence of a master-servant relationship. "The question is ordinarily one of fact, and where there are items of evidence indicating a master-servant relationship, contrary items ... cannot be given conclusive effect." Id. at 998. The court pointed to several factors: Humble retained title to products until delivery to the customer; Humble maintained a strict system of financial control and supervision; Humble furnished the station location, equipment, and advertising; it controlled hours of operation; and had a commission agreement. The court distinguished Wheat as a case "in which the lessee in charge of the filling station purchased from his landlord ... and sold as his own, and was free to sell at his own price and on his own credit terms, the company products purchased, as well as the products of other oil companies." Id. The court also pointed out that in Wheat the company did not control the working hours of the station.

Subsequent cases have examined the actual control exercised by the property owner, as well as the right of control over the premises and the operation of the business under the contract. In Space City Oil Company v. McGilvray, 519 S.W.2d 257 (Tex.Civ.App.1975, no writ), a customer brought a suit for personal injuries against a service station owner. The Court of Civil Appeals held that the questions of whether an agency relationship existed and whether the company had a right of control over the station operator were fact questions. The agreement in that case provided, among other things, that the oil company owned the station, equipment, and land; that all gasoline had to be purchased from the company; and that the company set the prices and controlled the hours of operation.

In Beckham v. Exxon Corporation, 539 S.W.2d 217 (Tex.Civ.App.1976, no writ), a summary judgment was affirmed where the service station operator purchased gasoline from the oil company, was free to sell the petroleum products of other oil companies, and set his own prices. The oil company required the operator to remain open 24 hours a day. Beckham distinguishes Martin in that in the latter case the station operator was required to make periodic reports, and in that title to the oil and gas remained in the oil company until delivery to the customer. The Beckham case arose from an auto collision involving a wrecker driven by an employee of the service station. See also Texas Co. v. Freer, 151 S.W.2d 907 (Tex.Civ.App.1941, writ dism'd judgt corr.). But see Edwards v. Neely Oil, Inc., 556 S.W.2d 114 (Tex.Civ.App.1977, writ ref'd n.r.e.); Willman v. Texaco, Inc., 535 S.W.2d 774 (Tex.Civ.App.1976, writ ref'd n.r.e.).

In Daniels v. Shell Oil Company, 485 S.W.2d 948 (Tex.Civ.App.1972, writ ref'd n.r.e.), summary judgment for the oil company was upheld where the appellants admitted that the evidence established a landlord-tenant relationship. The Court of Civil Appeals held that "where the entire premises have been let a landlord does not owe to either his tenant or to his tenant's employees a duty...