joined by
DOGGETT and SPECTOR, Justices, dissenting.I disagree with adopting the new standard in this case, because I believe the evidence clearly supports the conclusion, under the new standard as well as the old, that Exxon exercised control over safety in the workplace. The majority conveniently rejects the old test and adopts the new one to accommodate Exxon as defendant when there is no justification to excuse Exxon from liability in this case. The majority errs in doing so, and I dissent.
This court long ago recognized the potential for oil companies to use “dealership” relationships to avoid liability. It set forth the standard for liability as resting on evidence showing “the right or power of [the oil company] to control the details of the station work” with “regards [to other matters and] ... to employees.” Humble Oil & Ref. Co. v. Martin, 148 Tex. 175,178, 222 S.W.2d 995, 998 (1949) (emphasis added). The Martin case further set forth the factors which in *24that case constituted some evidence of contractual right to control, or actual control. Subsequent cases have not treated the Martin factors as exclusive in the sense that all had to be present or that no other factor could also indicate control; rather, the treatment has been one of identifying the types of factors that can demonstrate the requisite control. See, e.g., O’Neill v. Startex Petroleum, Inc., 715 S.W.2d 802, 805-06 (Tex.App.—Austin 1986, no writ); Space City Oil Co. v. McGilvray, 519 S.W.2d 257 (Tex.Civ. App.—Beaumont 1975, no writ).
This is not an “either-or” liability theory in that either the “landlord” Exxon or the “lessee” Morgan may be liable, but not both. Both Exxon and Morgan may be jointly (and severally) liable. The question is not, as the majority poses it, as between Exxon and Morgan, who had specific control over the safety and security of the premises. Rather, the question is whether there is evidence Exxon had the right to or exercised sufficient actual control, and was negligent in exercising that control, to the extent of proximately causing Tidwell’s injuries.
Exxon has alleged “no evidence” in its point of error. The standard for determining whether there is no evidence to support a fact finding is well established. The appellate court must consider only the evidence and reasonable inferences therefrom which tend to support the finding, and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
Here the trial court found more than a few contractual control factors from Martin and its progeny, found a number of actual control factors, found that a master-servant relationship existed, and found that Exxon exercised actual control over the events and portions of the premises that led to Tidwell’s injury. The majority apparently concedes there is evidence to support the findings. The problem is that the facts to be found have changed. The trial court admittedly did not find the required facts in the newly-required express terms. While the trial judge could hardly have been expected to anticipate the change in required terminology, he did make express findings which would support liability under the new requirements. Moreover, the findings under the new standard would be supported by some evidence.
Consider the evidence with respect to the specific harm that befell Tidwell — being shot during a robbery attempt. There was evidence Exxon knew or had reason to know of the danger of such occurrence on its premises, required the station owner and attendant to keep open during the evening hours (which Exxon knew presented the most danger from robberies) the bay doors through which the assailant entered, and specifically controlled and reserved the right to make physical changes for security and safety, such as adding pass-through windows with bullet-resistant glass that might have prevented or ameliorated Tidwell’s injury. This is an inappropriate case to announce the majority’s new standard and to require the trial court to restate the obvious in the required new language. We should wait for a case in which petitioner asks for a change in the law and which has underlying evidence indicating the change would or should make a difference. This is not it. For these reasons, I respectfully dissent.