Barker v. General Petroleum Corp.

• Decision Date: 11 June 1951
• Docket Number: No. 5285,5285
• Citation: 232 P.2d 390,72 Ariz. 187
• Parties: BARKER et ux. v. GENERAL PETROLEUM CORP. et al.
• Court: Arizona Supreme Court

Page 390

232 P.2d 390

72 Ariz. 187

BARKER et ux. v. GENERAL PETROLEUM CORP. et al.

No. 5285.

Supreme Court of Arizona.

June 11, 1951.

Opinion Modified on Rehearing July 12, 1951.

Morgan & Locklear, of Phoenix, for appellants.

Moore & Romley, Struckmeyer & Struckmeyer and Jack C. Cavness, all of Phoenix, for appellees.

STANFORD, Justice.

This is an appeal from a judgment entered on a directed verdict of the superior court against appellants, and from the court's order denying appellants' motion to set aside the judgment and motion for a new trial.

Appellants, plaintiffs in the action, owned and conducted a service station at Camp Verde, Arizona, and used products of the General Petroleum Corporation delivered to them by its agent, appellee W. F. Simpson, who had a wholesale agent's contract with the appellee corporation to deliver and distribute its products in that territory. In the latter part of 1947, Simpson had a young man working for him by the name of Robert Bland.

For the purpose of selling to appellants, one of the products of the appellee corporation known as stove gas, Simpson installed in the back, or store room of the service station, a certain container. The container belonged to the appellee corporation. In the said store room, at a point about 18 feet from the stove gas container, was an automatic Butane hot water heater with a pilot light which burned continuously.

The container of stove gas was filled by appellee Simpson or his employee Bland, by driving the truck near the door of the store room, then filling a 5 gallon can at the truck and carrying it into the store room and pouring the contents into the container through a square funnel capable of holding several gallons. The funnel was supported by being placed in the bunghole of the container.

Not only had appellant Barker complained to Simpson, but he had often warned Bland of the danger of overflowing the stove gas and letting it run out upon the floor because of the fire that might be ignited by the pilot light in the hot water heater.

On the morning of June 3, 1948, Bland made delivery of gasoline and stove gas to the service station of these appellants between the hours of 9:30 and 10:00. He filled the storage tanks in front of the station with gasoline, then drove his truck near the stove gas container and proceeded to fill it. Appellant Barker, who was serving customers at the front of his station, went into the store room for some oil, and found a quantity of stove gas on the floor and Bland was attempting to drain some of the excess out of the barrel. Barker severely criticized Bland and while he was returning to the front of the station, there was a flash and a fire had commenced, in consequence of which the storeroom and station were wholly consumed by fire. Appellants also suffered damages by the loss of their grocery store, the stock therein, the equipment and fixtures, their gasoline pumps and stock and equipment in their service station, a trailer court and other things.

Action was brought against the corporation and Simpson, alleging negligence, on the theory that they were principal and agent. After appellants had introduced their evidence in the cause and rested their case, counsel for the appellees moved for an instructed verdict. Motion was made for the corporation on the ground that there was no evidence showing any relationship between the corporation and Bland which would hold the corporation responsible for the actions of Bland, and likewise that there was shown to be no relationship between the corporation and Simpson which would render the corporation responsible for any negligence on his part, and on the further grounds that there was shown to be no negligence on the part of the corporation. The motion was made in behalf of Simpson on the ground that there was no negligence shown on the part of any person; neither the appellee Simpson nor any one for whom he was responsible. From an order of the court granting the motions, a verdict rendered accordingly and judgment entered thereon, this appeal is taken.

The appellants have submitted the following four assignments of error:

(1) 'The court erred in directing a verdict for the defendants, in denying plaintiffs' motion to set aside directed verdict and judgment, and in failing to grant a new trial for the reason that the evidence disclosed that plaintiffs' losses resulted from negligence of their servant and agent while acting in the due course of his employment.

(2) 'The court erred in failing to submit as a question of fact to the jury the issue of negligence since the inferences and conclusions to be drawn from the facts were for the jury and not for the court.

(3) 'The court erred in rendering a judgment in favor of defendants and against plaintiffs, and the judgment is clearly contrary to the facts and the law.

(4) 'If, as a matter of law, it should be held that the allegation of the first cause of action of the amended complaint does not sufficiently set out the act of negligence from which the fire resulted, causing damage to plaintiffs, then the court erred in striking the third cause of action of said amended complaint, which specifically refers to the spilling of the gasoline product.'

The appellee corporation has submitted the following cross assignment of error:

'The court erred in admitting in evidence a copy of the written contract between defendants General Petroleum and Simpson with paragraphs 5 and 8 deleted and without also requiring plaintiffs to offer in evidence 'Company's Wholesale Agent's Manual No. M-3', incorporated into the contract by reference, for the reason that the relationship created by the contract between the parties, their respective rights, obligations and liabilities thereunder each to the other and to strangers could be determined only by reading the instrument and the one incorporated as a part of it by reference together as a whole.'

Paragraphs 5 and 8 were deleted because they referred to indemnity insurance, something which could not be submitted to the jury as part of plaintiffs' case, but which was before the court.

There are two issues presented by this appeal: (1) was Bland guilty of actionable negligence, and (2) if so, are the appellees, or either of them liable for such negligence?

The testimony in this case shows that on June 3, 1948, there existed between the two appellees a contract known as a Wholesale Agent's Congract, by the terms of which Simpson was appointed a wholesale agent for the appellee corporation 'for the distribution and sale of only those of Company's products distributed and sold under its brands' for the Verde Valley territory including Camp Verde.

As we proceed with a discussion of the issues herein, we shall take it for granted that, under this court's opinions, motions made by these appellees are, regarded '* * * as admitting the truth of whatever competent evidence the opposing party had introduced including the reasonable inferences to be drawn therefrom, and it is only where the evidence is insufficient to support a verdict, or where it is so weak that upon a motion for a new trial after verdict the court would feel constrained to set aside, that the court is justified in directing a verdict. Arizona Binghampton Copper Co. v. Dickson, 22 Ariz. 163, 195 P. 538, 44 A.L.R. 881; Dieterle v. Yellow Cab Co., 34 Cal.App.2d 97, 93 P.2d 171.' Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, 204.

As shown in the above quoted cross assignment, it is the position of the appellee corporation that this contract was erroneously admitted without the Wholesale Agent's Manual being attached thereto. With this contention we concur. Provision No. 3 of the contract, specifically provided that the manual was made a part of the contract, which was offered in evidence for the purpose of showing the relationship that existed between the corporation and Simpson, and without considering the provisions of the manual with the contract, a full picture of that relationship is impossible. Objection was made by the corporation at the time the contract was offered, to its admission without the inclusion of the manual. We hold however that under the provisions of section 3, the admission of the contract into evidence had the effect of carrying with it the manual as an integral part thereof.

Our first consideration will be directed toward the relationship between Simpson and the corporation to determine the responsibility of the corporation and Simpson for the alleged acts of negligence on the part of Bland.

Without considering the material in the contract, the uncontradicted testimony in the trial court shows that Simpson was a wholesale agent of the corporation and that he made deliveries of products of the corporation, which products remained the property of the corporation until delivered and title was passed to the purchasers, that the purchasers were billed for such deliveries by the corporation and that they made payment either directly to the corporation or to Simpson who then remitted the entire amount to the corporation without making deduction, the corporation then paying Simpson's commission to him for the transaction. Additional evidence of record shows that appellant Barker was one of many dealers receiving deliveries from Simpson. These dealers purchased the products delivered by Simpson, pursuant to a contract between them and...