Green v. Independent Oil Co.

• Decision Date: 21 April 1964
• Parties: Verna M. GREEN, Administratrix of the Estate of Norman B. Green v. INDEPENDENT OIL COMPANY, a Delaware Corporation, Appellant, and Woodrow Graffius. Gordon K. REEVES, Administrator of the Estate of Woodrow B. Graffius, Jr. v. INDEPENDENT OIL COMPANY, a Delaware Corporation, Appellant, and Woodrow Graffius.
• Court: Pennsylvania Supreme Court

Page 207

201 A.2d 207

414 Pa. 477

Verna M. GREEN, Administratrix of the Estate of Norman B. Green v. INDEPENDENT OIL COMPANY, a Delaware Corporation, Appellant, and Woodrow Graffius.

Gordon K. REEVES, Administrator of the Estate of Woodrow B.

Graffius, Jr. v. INDEPENDENT OIL COMPANY, a Delaware Corporation, Appellant, and Woodrow Graffius.

Supreme Court of Pennsylvania.

April 21, 1964.

Rehearing Denied June 22, 1964.

Harold McCamey, Pittsburgh, Glenn Thomson, Clearfield, for appellant.

Donald R. Mikesell, Carl A. Belin, Jr., Clearfield, for Verna M. Green and Gordon K. Reeves.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

JONES, Justice.

On July 2, 1960, Independent Oil Company, [Independent], A Delaware corporation, owned a certain property in Clearfield Borough, Clearfield County, improved with a building used as a gasoline service station. This property and building were occupied by Woodrow Graffius, [Graffius], under a written lease with Independent.

'The gas station consists of a large room with a very wide door opening on the street, in which two motor vehicles may enter. A hoist for raising vehicles above the floor level, to permit work and attention underneath, is in this room. The other part of this space is for placing cars for washing and other servicing that may be required. At one end of the service room is an enclosed space used as an office, and toward the rear of the service room is a smaller room used as a storage room.' ¹

At approximately 10 p. m. on July 2, 1960, Graffius' minor son, Woodrow Graffius, Jr., and Norman Green, a soft drink customer, were on the premises, standing near the doorway between the service room and the storage room. Graffius and Larry Schultz, an employee of Graffius, closing the station for the night, were cleaning the station floor, Schultz was engaged in throwing over the floor a mixture of kerosene and gasoline, ² and Graffius was sweeping this mixture around, together with soap, to clean the floor. Shortly after starting to spread the mixture on the floor, Graffius heard a 'cracking noise' and Schultz heard a 'boom'. Both saw a sheet of flame sweep through the service room and then saw both Graffius, Jr. and Green staggering out, severly burned. 'The service room showed no evidence of explosion, and very little evidence of fire. According to the explosive expert subpoenaed by [Independent and Graffius], the kerosene-gasoline mixture used was highly volatile and inflammable. Gasoline evaporates into the air, and is heavier than the air. The fumes spread rapidly throughout the air. Any spark or fire of any kind, static electricity, defective wiring, or from a firecracker, could cause the gasoline in the air to ignite, burn throughout the air rapidly, and would make a sound when it ignited * * *.' ³ Both Graffius, Jr. and Green died as the result of the burns received.

In the Court of Common Pleas of Clearfield County two separate trespass actions were instituted: (a) an action by Green's personal representative against Independent and Graffius, defendants, wherein Graffius, Jr.'s personal representative was joined as an additional defendant; (b) an action by Graffius, Jr.'s personal representative against Independent and Graffius, defendants, wherein Green's personal representative was joined as an additional defendant. These actions were tried before a court and jury, ⁴ and the jury rendered separate verdicts: a $72,370.70 verdict in favor of Green's personal representative against Independent and Graffius, and a $13,093.75 verdict in favor of Graffius, Jr.'s personal representative against Independent and Graffius. Graffius' motions for a new trial and judgments n. o. v. were not pursued. Independent's motions for a new trial and judgments n. o. v. were overruled and judgments entered on the verdicts. Independent appeals from both judgments.

Apparently, ⁵ Independent seeks judgments n. o. v., or, in the alternative, a new trial.

Independent seeks judgments n. o. v. on two grounds: (1) that the relationship between Independent and Graffius was that of independent contractee-independent contractor and, therefore, Independent had no vicarious responsibility on the theory of respondeat superior for negligence on Graffius' part; (2) assuming, arguendo, Independent was shown to have been negligent in the repair of the hoist of the gasoline station so that oil leaked therefrom to the service room floor, such negligence on Independent's part was not a proximate cause of the accident, and its negligence cause superseded by Graffius' negligence in using the highly volatile and inflammable gasoline-kerosene mixture on the floor.

Between Independent and Graffius were two undertakings, one embodied in the lease of the property which clearly created a landlord-tenant relationship and one embodied in the written agreement whereby Independnet constituted Graffius as a dealer in its products. It is from the latter agreement, if at all, that any vicarious responsibility must arise on the part of Independent for any negligent acts on Graffius' part.

The latter agreement--herein termed Dealer's Agreement--recited, inter alia, that Independent constituted Graffius a dealer in its products for a term 'beginning April 18, 1960 and ending January 31, 1961, and thereafter, upon the terms and conditions [of the agreement], from year to year, until either party shall give to the other at least' 90 days written notice of a desire not to renew the agreement; that Graffius would maintain in repair the buildings and other facilities on the property and the equipment required for storing and selling products purchased by Graffius from Independent; that Independent would lend certain specified equipment to Graffius for the storage and sale of its products; that Graffius would purchase all motor oils and fuel from Independent; that Graffius would pay all utility charges and other expenses connected with the maintenance and operation of the property and business, provide all governmental licenses and permits for the conduct of the business and pay all taxes for conducting the business; that Graffius would 'not hold himself out as the Agent of [Independent]' and 'shall conduct all business in [Independent's] products in [his] name, consequently displaying his name on the premises.'; that '[Independent] may forthwith terminate this contract at any time by written notice to [Graffius] on any default by [Graffius] or [Independent] may suspend deliveries during such default'.

The record indicates that Graffius, in addition to Independent's motor oils and fuel, sold various automobile accessories, soft drinks, candy and cigarettes, all the profits from which went to Graffius personally; the sales tax permits and the electric bills were in Graffius' name; Graffius hired and fired his own employees, paid their wages and unemployment and social security taxes; all monies from the operation of the gasoline station were kept in his own bank account, and it was Graffius who kept all profits and paid all losses arising from the business, paying to Independent for purchase of its products certain prices to be arrived at under formulas set forth in the agreement.

It is appellees' position that, on the basis of the Dealers Agreement together with the fact that on frequent occasions representatives of Independent visited the gasoline line service station, ⁶ the question whether or not the relationship between Independent and Graffius was an employee-employer relationship was for determination by the jury, that such question had been properly presented to the jury and the jury had resolved it against Independent.

In ascertaining whether a person is an employee or an independent contractor, ⁷ the basic inquiry is whether such person is subject to the alleged employer's control or right to control with respect to his physical conduct in the performance of the services for which he was engaged: Joseph v. United Workers Association, 343 Pa. 636, 639, 23 A.2d 470; Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486, 70 A.2d 299. If the facts as to such relationship are in dispute, it is the function of a jury to determine the precise nature of the relationship between the parties: Feller, supra, 363 Pa. at p. 486, 70 A.2d 299. However, where the facts are not in dispute, the question of the relationship becomes one for determination by the court: Joseph, supra, 343 Pa. p. 639, 23 A.2d 470; Feller, supra, 363 Pa. p. 486, 70 A.2d 299; Johnson, Admr., et al. v. Angretti et al., 364 Pa. 602, 607, 73 A.2d 666.

The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the...