Janet Terry, through her mother and next friend, Peggy Terry, and Peggy Terry, individually, filed an action against Phillips 66 Company, Inc. ("Phillips 66"), Terry Young Oil Co., Inc. ("Terry Young"), Billy Glenn Terry, Culver's Quick Stop, Pauline Culver, and Junior Culver, alleging that the defendants' negligence or wantonness had caused Janet's personal injuries. The trial court entered a summary judgment for Phillips 66, Terry Young, and Billy Glenn Terry and made those judgments final pursuant to Rule 54(b), A.R.Civ.P. In this appeal, Janet argues that the trial court erred by entering a judgment for Terry Young and Billy Glenn Terry; she makes no arguments in relation to Phillips 66.
In Stephens v. City of Montgomery, 575 So.2d 1095, 1097 (Ala. 1991), we stated the following about summary judgment proceedings:
"The standard used to determine the propriety of a summary judgment is found in Rule 56(c), A.R.Civ.P.:
" 'The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'
"The burdens placed on the parties by this rule have often been described:
" 'The burden is on one moving for summary judgment to demonstrate *Page 35 that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala. 1977); Shades Ridge Holding Co. v. Cobbs, Allen Hall Mortg. Co., 390 So.2d 601 (Ala. 1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala. 1980).'
Schoen v. Gulledge, 481 So.2d 1094, 1096-97 (Ala. 1985).
"In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Sanders v. Kirkland Co., 510 So.2d 138 (Ala. 1987)."
Because this case was not pending on June 11, 1987, Ala. Code 1975, § 12-21-12, the plaintiffs must prove their case by "substantial evidence," which this Court has defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. FoundersLife Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). The trial court's ruling on a summary judgment motion is a nondiscretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly presented in the record is de novo. Hightower Co. v. United States Fidelity Guaranty Co., 527 So.2d 698 (Ala. 1988).
Janet and Peggy Terry contend that Janet was injured as a result of Junior Culver's smoking a cigarette while he pumped gasoline into the vehicle in which Janet was a passenger. According to the Terrys, the cigarette ignited the gasoline, which exploded, causing Janet Terry second and third degree burns. They contend that Billy Glenn Terry and Terry Young are liable for Junior Culver's actions under the doctrine of respondeat superior.
The following facts are undisputed: Billy Glenn Terry is an employee of Terry Young. Terry Young own the land and the building where Janet's injury occurred, and it leased the land and building to Junior Culver, who operated Culver's Quick Stop on those premises. Neither Culver nor any of his employees were employed by Terry Young or Billy Glenn Terry. Billy Glenn Terry was not on the premises when the accident occurred.
The Court has addressed the law applicable to this case inSawyer v. Chevron U.S.A., Inc., 421 So.2d 1263 (Ala. 1982), andWood v. Shell Oil Co., 495 So.2d 1034 (Ala. 1986).
In Sawyer, Sawyer brought an action against Chevron U.S.A., Inc. ("Chevron"), for injuries he sustained in an automobile collision. Sawyer was injured when a truck, which was driven by an employee of McDonald Petroleum Company, collided with the rear of an automobile in which Sawyer was a passenger. Sawyer alleged that McDonald Petroleum was Chevron's agent. The trial court entered a summary judgment for Chevron, and Sawyer appealed.
The Court, after a detailed factual analysis, reversed the judgment for Chevron, holding that there was a factual issue suitable for jury determination, which precluded summary judgment. 421 So.2d at 1266. As to the law regarding a master-servant relationship, the Court wrote:
421 So.2d at 1264."Sawyer contends the facts in this case are sufficient to present a jury question as to whether there existed a relationship of master and servant between Chevron and McDonald Petroleum. . . .
"There is little doubt that the controlling question in this case is the relationship of McDonald Petroleum to Chevron. The test to be used in determining such relationship is whether Chevron had a reserved right of control over the means and agencies by which the work was done or the result produced, not the actual exercise of such control. Tuscaloosa *Page 36 Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937)."
In Wood, Harrison Wood filed an action against Shell Oil Company ("Shell") to recover damages for injuries he sustained when he slipped and fell on the premises of Parker Shell, which is apparently a gasoline service station. Wood contended that Parker Shell was an agent of Shell, and the Court addressed the existence of an agency relationship between the two. After a factual analysis as detailed as the analysis in Sawyer, the Court affirmed the summary judgment. As to the law to be applied, the Court wrote:
495 So.2d at 1036."The test to be applied in determining the existence of an agency relationship under the doctrine of respondeat superior is whether the alleged principal reserved a right of control over the manner of the alleged agent's performance."
Janet and Peggy Terry contend that Sawyer and Wood reach contrary results on virtually the same facts and that the rationale in Sawyer is appropriate, but the rationale in Wood is due to be rejected. To explain the difference in Sawyer andWood, which at first glance admittedly appear to reach contradictory results on similar facts, would require a full-blown, painstaking factual comparison of the two cases. We find it unnecessary to make such a comparison, however, because the law regarding respondeat superior pertinent to the resolution of this case given by both Sawyer and Wood is the same, and we can resolve this case by applying its facts to the undisputed law.
The test to be used in determining whether Billy Glenn Terry or Terry Young are liable for Junior Culver's actions under the doctrine of respondeat superior is whether they reserved a right of control over the manner in which Culver performed his job — that is, whether they reserved a right of physical control over the means and agencies by which the work was done or the result produced. Sawyer; Wood.1
The plaintiffs argue that the following evidence indicates that the defendants reserved a right of control over the manner of Culver's performance: Terry Young owned the building and the property on which the gasoline service station was located; Terry Young owned and maintained the gasoline tanks located on the property; the gasoline was furnished by Terry Young, which determined the price of the gasoline; Culver received from Terry Young a commission of six cents per gallon of gasoline sold; Terry Young reserved the right to restrict Culver from selling the gasoline products of other oil companies and paid the taxes on the gasoline sales; and a Terry Young representative collected the money from the gasoline sales each week.
None of that evidence even addresses Billy Glenn Terry, and the plaintiffs present no additional evidence for their claims against him. We question whether, for the purposes of the plaintiffs proving liability under respondeat superior, that evidence is relevant and material to show that Terry Young reserved a right of control over the manner of Culver's performance, Sawyer, Wood; in any event, the plaintiffs have not proven by substantial evidence that Terry Young are liable under the doctrine of respondeat superior for Culver's *Page 37 actions.2 Accordingly, the plaintiffs failed to prove that either Billy Glenn Terry or Terry Young should be held liable under the doctrine of respondeat superior for Culver's actions. They make no other arguments for a principal-agent relationship. The trial court did not err in entering a summary judgment for Billy Glenn Terry and for Terry Young. The judgment is due to be affirmed.
AFFIRMED.
MADDOX, SHORES and HOUSTON, JJ., concur.
HORNSBY, C.J., concurs specially.