Bartholomew v. Skelly Oil Co.

• Decision Date: 10 December 1943
• Docket Number: 31676.
• Parties: BARTHOLOMEW v. SKELLY OIL CO.
• Court: Nebraska Supreme Court

12 N.W.2d 122

144 Neb. 51

BARTHOLOMEW v. SKELLY OIL CO.

No. 31676.

Supreme Court of Nebraska

December 10, 1943

Syllabus by the Court.

1. In the absence of an express covenant or stipulation a lessor is not bound to make repairs to leased property.

2. A person relying upon the act of an agent has the burden of proving such agent's authority.

E F. Armstrong, Lowell E. Hahn, and Edgar Ferneau, all of Auburn, for appellant.

Beghtol Foe & Rankin, of Lincoln, and Lee Kelligar, of Auburn for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, CHAPPELL, and WENKE, JJ., and POLK and NUSS, District Judges.

NUSS District Judge.

Action by Leslie Carol Bartholomew against the Skelly Oil Company to recover damages for personal injuries suffered by the plaintiff as a result of an explosion of gasoline at a filling station where the plaintiff was working. At the conclusion of the evidence the trial court directed a verdict for the defendant and the plaintiff appeals.

It is undisputed in the evidence that the defendant, Skelly Oil Company, owned the filling station in question; that on the 19th day of August, 1940, it leased the same in writing to Dean Turnbull who operated the same. The lease provided in substance that the lessee should do nothing to injure or damage the property; that on the termination of the lease to return the same to lessor in as good condition as when received, reasonable wear and tear excepted, and to pay for any part which might be destroyed or damaged; to save the lessor harmless against all claims and demands for any loss, damage or injury to person or property caused by the lessee's operation of the station; and that none of the provisions of the lease should be construed as reserving to lessor any right to exercise any control over the business or operations of the lessee or to direct in any manner how such business should be conducted; that the lessor should have no control or direction over the employment or conduct of employees of lessee and that in no event should any person or persons employed by lessee be considered an employee of lessor.

About two months before January 31, 1941, the lessee, Turnbull and his employees noticed excessive gasoline fumes around the station and particularly from the pits where the storage tanks were located. Turnbull testifies that he notified the company thereof; that he "had mentioned the fact to the district manager; I had notified the district representative, his name was T. E. Badger." Being asked by plaintiff's attorney who Mr. Badger was he replied, "He was the district representative for Skelly Oil Company." That he knew him well; that he came to the filling station at fairly regular times, once or twice a week or some times once every two or three weeks. That he mentioned the fumes to Badger at the station and Badger, "suggested I get a plumber". That he, Turnbull, contacted one Steve Combs, a plumber, who made an investigation and informed Turnbull it would cost five or six dollars to make the repairs. "I told the district representative and he told me to go ahead and hire Mr. Combs." "Q. He instructed you to go ahead and have him make the repair, did he?" "A. That's right." That Mr. Combs came to the station on the 31st day of January 1941. That in order to drive the fumes from the pit he obtained an electric fan, took it to the mouth of the pit of the manhole and started the fan going when a spark from the fan ignited the gas and caused a terrific explosion which killed Combs and injured the plaintiff who was standing about five or six feet away. The plaintiff at that time and for some time prior thereto had been an employee of Turnbull.

The foregoing is all the evidence upon which the plaintiff seeks to hold the defendant company liable.

The accident and plaintiff's injuries in this case were caused by the obvious negligence of the plumber, Combs. The question, therefore, is whether the defendant is responsible for the negligence of Combs. Admittedly if Combs were an employee of the defendant the defendant would be liable for his negligence. It is not claimed that the defendant would be liable otherwise.

Under the lease it was the duty, not of the defendant company, but of Turnbull to make any and all repairs upon or in connection with the premises. In the absence of an express covenant or stipulation in the lease, a lessor is not bound to make ordinary repairs to leased...