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ELAINE G. FRUCHTER v. LYNCH OIL COMPANY

FEBRUARY 03, 1988

ELAINE G. FRUCHTER
v.
LYNCH OIL COMPANY



BEFORE HAWKINS, P.J.; 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 ...


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