Becker v. Aschen

• Decision Date: 07 July 1939
• Docket Number: 35750,36004
• Parties: Wesley Becker v. George W. Aschen, Jr., and Standard Oil Company, a Corporation, Appellants
• Court: Missouri Supreme Court

131 S.W.2d 533

344 Mo. 1107

Wesley Becker v. George W. Aschen, Jr., and Standard Oil Company, a Corporation, Appellants

Nos. 35750, 36004

Supreme Court of Missouri

July 7, 1939

Motion for Rehearing Overruled September 14, 1939.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

R E. Blodgett for George W. Aschen, Jr.

(1) The court erred in refusing to give and read to the jury the peremptory instruction in the nature of a demurrer to the evidence offered by this appellant at the close of the plaintiff's case and at the close of the entire case. (a) The evidence did not show actionable negligence on the part of defendant George W. Aschen, Jr. Achter v. Sears Roebuck & Co., 105 S.W.2d 959; Dimarco v. Cupp Grocery Co., 88 Pa. 449; Cluett v. Union E. L. & P. Co., 220 S.W. 865; Stein v. Buckingham Realty Co., 60 S.W.2d 712; Penny Co. v. Robison, 128 Ohio St. 626; Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723. (b) The plaintiff was guilty of contributory negligence as a matter of law. Curtis v. Capitol Stage, 27 S.W.2d 747; Paubel v. Hitz, 96 S.W.2d 369; Ready v. Garavelli, 102 S.W.2d 734; O'Brien v. Standard Oil Co., 38 F.2d 808. (2) Instruction 1, given at the request of the plaintiff, is erroneous. State ex rel. v. Ellison, 272 Mo. 571; Pentecost v. Terminal Ry. Co., 66 S.W.2d 533. (3) The verdict and judgment are grossly excessive. Parks v. United Rys., 235 S.W. 1067; Rose v. St. L.-S. F. Ry. Co., 289 S.W. 913, 315, Mo. 1181; Young v. Lusk, 187 S.W. 849, 268 Mo. 625; Grange v. Chicago & E. I. Ry. Co., 69 S.W.2d 955, 334 Mo. 1040; Jenkins v. Mo. State Life Ins. Co., 69 S.W.2d 666, 334 Mo. 941; Tash v. St. L.-S. F. Ry. Co., 76 S.W.2d 690, 335 Mo. 1148; Cole v. Railroad Co., 61 S.W.2d 344; Spencer v. Ry. Co., 317 Mo. 492.

Nagel, Kirby, Orrick & Shepley and Everett Paul Griffin for Standard Oil Company.

(1) The court erred in refusing the peremptory instruction in the nature of a demurrer to the evidence offered by the defendant at the close of the plaintiff's case and also at the close of all the evidence. (a) There was no evidence of negligence on the part of the defendant Standard Oil Company in this case. Achter v. Sears, Roebuck & Co., 105 S.W.2d 959; Cluett v. Union E. L. & P. Co., 220 S.W. 865; Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723; Stein v. Buckingham Realty Co., 60 S.W.2d 712; Penny Co. v. Robison, 128 Ohio St. 626; Dimarco v. Cupp Grocery Co., 88 Pa.Super. 449. (b) The plaintiff was guilty of contributory negligence as a matter of law. Parks v. Pub. Serv. Co., 235 S.W. 1067; Ready v. Garavelli, 102 S.W.2d 734; Paubel v. Hitz, 96 S.W.2d 369; Curtis v. Capitol Stage, 27 S.W.2d 747; O'Brien v. Standard Oil Co., 38 F.2d 808. (c) There was no evidence in the case that George W. Aschen, Jr., was the agent of the Standard Oil Company in the operation of the filling station, and particularly in the operation of his grease rack where the accident occurred. (d) There was no evidence that even if George W. Aschen, Jr., was the agent of the Standard Oil Company in connection with the sale of gasoline and oil at 5738 Delmar Boulevard that the said Aschen in the transaction with the plaintiff in the draining of his car was acting within the scope of his agency for the Standard Oil Company. Moss Tie Co. v. Stamp, 25 S.W.2d 138; Gibson v. Texas Prudential Ins. Co., 86 S.W.2d 400, 229 Mo.App. 867; 3 C. J. S., sec. 269; Citizens Trust Co. v. Tindle, 194 S.W. 1025. (e) Plaintiff failed to prove the allegations in his petition. The evidence did not prove those allegations. (2) Instruction 1, given and read to the jury by the court at the request of the plaintiff, is erroneous. Because it omits essential elements of plaintiff's right to recover and yet authorizes verdict for plaintiff. Because it follows the petition and not the evidence. Because it is based on facts not proved. Because it omits facts proved. State ex rel. v. Ellison, 272 Mo. 571; Pentecost v. Terminal Ry. Co., 66 S.W.2d 533. (3) The verdict and judgment, under the facts in this case, are grossly excessive. Rose v. St. L.-S. F. Ry. Co., 289 S.W. 913, 315 Mo. 1181; Young v. Lusk, 187 S.W. 849, 268 Mo. 625; Grange v. Chicago & E. I. Ry. Co., 69 S.W.2d 955, 334 Mo. 1040; Jenkins v. Mo. States Life Ins. Co., 69 S.W.2d 666, 334 Mo. 941; Tash v. St. L.-S. F. Ry. Co., 76 S.W.2d 690, 335 Mo. 1148; Cole v. Railroad Co., 61 S.W.2d 344; Spencer v. Ry. Co., 317 Mo. 492.

Albert T. Sauer and Moser, Marsalek & Dearing for respondent.

(1) The owner or possessor of premises is liable to an invitee, using due care, for an injury occasioned the invitee by an unsafe condition of the premises which is actually or constructively known to the owner or possessor but not the invitee, and which the owner or possessor has negligently suffered to exist but of which the invitee has no knowledge or notice. Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Hubenschmidt v. Kresge Co., 115 S.W.2d 211; Asbury v. Fid. Natl. Bank & Trust Co., 100 S.W.2d 946. (a) Plaintiff was not guilty of contributory negligence. State ex rel. Elliotts' Dept. Store Co. v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Wilson v. Wells, 13 S.W.2d 541. (b) Under the evidence the jury was warranted in finding that Standard Oil Company operated the filling station and that defendant Aschen was its agent, servant and employee. Heisey v. Tidewater Oil Co., 92 S.W.2d 922; Greene v. Spinning, 48 S.W.2d 51; Coffman v. Shell Pet. Corp., 71 S.W.2d 97; Garnant v. Shell Pet. Corp., 65 S.W.2d 1052; Cholet v. Phillips Pet. Co., 71 S.W.2d 799; Buchholz v. Standard Oil Co., 211 Mo.App. 397; Gulf Refining Co. v. Brown, 93 F.2d 870, 116 A. L. R. 449; Gulf Ref. Co. v. Rogers, 57 S.W.2d 183. (c) Defendant Aschen and his employees were servants of Standard Oil Company; the fact that Aschen was remunerated on a commission basis does not alter or affect the situation. Magnolia Pet. Co. v. Pierce, 132 Okla. 167, 269 P. 1076; Riggs v. Standard Oil Co., 130 F. 199; Magnolia Pet. Co. v. Johnson, 149 Ark. 553, 233 S.W. 680. (d) Aschen was not an independent contractor because Standard Oil Company reserves to itself the right to control (and in fact did control) the method of transacting the filling station's business. Karguth v. Donk Bros., 299 Mo. 580, 253 S.W. 367; Maher v. Donk Bros., 232 Mo. 799, 20 S.W.2d 888; Renfro v. Central C. & C. Co., 223 Mo.App. 1219, 19 S.W.2d 766; Fuqua v. Lumbermen's Supply Co., 76 S.W.2d 715. (2) Even if the petition can be considered defective, since the facts went into evidence without objection and defendants joined issue thereon in their proof and instructions, on appeal the petition will be treated as having been amended to conform to the proof. Rock v. Keller, 312 Mo. 458, 278 S.W. 759; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Solomon v. Moberly L. & P. Co., 303 Mo. 633; Garbee v. Ry. Co., 220 Mo.App. 1252. (3) The verdict is not excessive. Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Wagner v. Gilsonite Const. Co., 220 S.W. 890; Lepchenski v. M. & O. Ry. Co., 332 Mo. 194, 59 S.W.2d 610.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for damages for personal injuries sustained by plaintiff while getting down from an automobile greasing and drain rack. The Standard Oil Company (hereinafter referred to as Oil Company) and the operator of one of its service stations were made defendants. The jury returned a verdict for $ 11,000 against both defendants. Defendants appealed separately from the judgment but the appeals have been consolidated here.

The amended petition upon which the cause was tried charged that defendant Aschen and defendant Oil Company were operating an oil and gasoline filling station in St. Louis; that plaintiff was an invitee of defendants for the purpose of having the oil in the crank-case of his automobile changed; that at the direction of defendants he drove his car onto a stationary grease rack; and that while attempting to alight from his car by means of a step on the grease rack, he was caused to slip and fall, receiving injuries. Defendants complain, first, of the court's failure to give instructions in the nature of demurrers to the evidence offered at the close of plaintiff's case and at the close of all the evidence, second, of the giving of plaintiff's Instruction No. 1, and third, of the verdict of the jury as grossly excessive.

The question presented by defendants' request for directed verdicts is whether, admitting the truth of all the evidence given in favor of plaintiff, together with such inferences as may reasonably be drawn from it, there is enough evidence to sustain a verdict for plaintiff against defendants. In determining whether plaintiff made a submissible case for the purpose of ruling on defendants' peremptory instructions the court must consider the evidence and all inferences fairly deducible therefrom in a light most favorable to plaintiff, but defendants' evidence showing facts contrary to plaintiff's evidence and all unfavorable inferences must be rejected. [Willhauck v. Chi., R. I. & Pac. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336, 338; Gerber v. Kansas City, 304 Mo. 157, 263 S.W. 432, 436.] The determination of all issues of fact are for the jury. [Parrent v. Mobile & O. Ry. Co., 334 Mo. 1202, 70 S.W.2d 1068, 1073.] If supported by substantial evidence the verdict and finding of the jury is conclusive and binding upon this court. [Rexford v. Philippi, 337 Mo. 389, 84 S.W.2d 628, 630.]

The charge of negligence is that plaintiff's " injuries were directly caused by the negligence and carelessness of the defendants in this: that defendants negligently and carelessly caused and permitted oil to be and remain on said step, when defendants...