Brenner v. Socony Vacuum Oil Co.
| Decision Date | 05 January 1942 |
| Citation | 158 S.W.2d 171,236 Mo.App. 524 |
| Parties | HARRY BRENNER, RESPONDENT, v. SOCONY VACUUM OIL COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Brown Harris Judge.
AFFIRMED.
Judgment affirmed.
James P. Kem and J. R. Kaspar for appellant.
(1) The court erred in refusing appellant's requested instruction in the nature of a demurrer to the evidence. Lindsay v Francis et al., 107 S.W.2d 97; Langley et al. v Imperial Coal Co., 234 Mo.App. 1087, 138 S.W.2d 696; Barnes v. Real Silk Hosiery Mills et al., 341 Mo. 563, 108 S.W.2d 58; Skidmore v. Haggard et al., 341 Mo. 837, 110 S.W.2d 726; Bass et ux. v. Kansas City Journal Post Co., 148 S.W.2d 548; Ross v. St. Louis Dairy Co. et al., 339 Mo. 982, 98 S.W.2d 717; Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758; Arkansas Fuel Oil Co. et al. v. Scaletta et al., 200 Ark. 645, 140 S.W.2d 684; Reynolds v. Skelly Oil Co., 227 Iowa 163, 287 N.W. 823; Shell Petroleum Corporation v. Linham, 163 So. 839; Donovan et ux. v. Standard Oil Co. of Louisiana et al., 197 So. 320; Fischer v. Havelock et al., 138 Cal.App. 584, 25 P.2d 864. The construction of the lease and dealer's contract was a question wholly for the court and not the jury. Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; Prideaux v. Plymouth Securities Co. et al., 231 Mo.App. 1060, 84 S.W.2d 166; Ward v. Kurn et al., 138 Mo.App. 692, 132 S.W.2d 245. There is no evidence that the lease under which the property was held by the lessee was either fictitious or fraudulent. Farmers' Bank of Concordia v. Worthington et al., 145 Mo. 91, 46 S.W. 745; Moberly et al. v. Watson et al., 340 Mo. 820, 102 S.W.2d 886; Langley et al. v. Imperial Coal Co., 234 Mo.App. 1087, 138 S.W.2d 696.
Cornelius Roach and Daniel L. Brenner for respondent.
There was sufficient evidence from which the jury could find that the lease and contract between appellant and Smith were fictitious. Becker v. Aschen, 131 S.W.2d 533; Tomlinson v. Marshall (Mo. App.), 236 S.W. 680; Buchholz v. Standard Oil Co., 244 S.W. 973; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Greene v. Spinning, 48 S.W.2d 51; Coffman v. Shell Petroleum Corp., 71 S.W.2d 97; Becker v. Aschen, 131 S.W.2d 533.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $ 800, and defendant has appealed.
The facts show that plaintiff was injured on April 17, 1938, while upon premises owned by defendant, in Kansas City. The premises, at the time, were being operated as a filling station. Plaintiff was standing by his car being serviced with gasoline on the premises, when he was injured by being struck by a truck operated by one of the attendants at the filling station.
There is no contention that the attendant was not negligent. The sole question raised on this appeal is whether one Smith, who was managing the filling station at the time of plaintiff's injury, was a lessee of the premises or was he acting as the agent or employee of the defendant. In this connection defendant contends that Smith was operating his own business at the filling station, that there is no liability against the defendant, and that its instruction in the nature of a demurrer to the evidence should have been given. This requires the evidence to be stated in its most favorable light to plaintiff. The evidence shows that defendant owned the land, the buildings, and the equipment at the filling station, the pumps, tanks, compressor, signs, hydraulic lift, greasing equipment, tire hose, and a part, if not all, of the office equipment.
Smith entered defendant's employ about a year and shalf prior to September 3, 1936, operating the station on a salary and commission basis for the defendant. The salary and commissions amounted to in the "neighborhood" of $ 150 per month. On said date Smith and defendant executed two instruments purporting to create a new relationship between them. One was a lease of the premises from defendant to Smith and the other a "Dealer's Sales Agreement."
In the lease it was provided that defendant leased to Smith the filling station, the building, improvements and equipment thereon or to be placed thereon, for a period of one year at a rental of $ 30 per month, plus one-half cent for each gallon of motor fuel delivered at the premises. Such rental was to be paid at the time of the delivery of the fuel. Smith agreed, among other things, to pay said rental punctually as aforesaid. It was provided that if Smith should be in default under any of the provisions of the lease, it should expire on written notice from defendant; that in case of default on the part of Smith, defendant could re-possess the property; that the lease should remain in full force from year to year unless written notice was given by either party thirty days prior to any anniversary date of the lease.
The instrument further provided that Smith agreed to indemnify the defendant against loss or liability on account of any injury to persons or property arising out of or in connection with the premises, or the use thereof; that the lessee would pay all water, sewer, gas and electricity charges and all taxes and license fees, excepting only taxes on the land, buildings, improvements and equipment. The evidence shows that this instrument remained in effect at the time plaintiff was injured.
The "Dealer's Sales Agreement" provided that defendant would sell and Smith would buy minimum and maximum quantities of gasoline, oil and greases; that defendant also would sell to Smith "Automotive Accessories and Specialties for resale at said premises;" that the products to be delivered and received should be of such grades and brands as marketed by defendant to similar dealers in the area in which the dealer's premises were located "all as determined by Company" (the defendant). That the price paid for each product should be posted or list price as posted or listed by defendant at its plant from which delivery was to be made, in effect at time and for place of delivery and applicable to that class of dealers in which at said time Smith shall fall, in accordance with defendant's classification at such time; that Smith should pay for such products, in cash, at the time of delivery, unless defendant extended credit; that Smith might, whenever requested by defendant, sell any of the products to defendant's customers on credit authorized by the company; that he should pay all property taxes and assessments, utility charges and other expenses in connection with the operation and the maintenance of the premises and the business conducted thereat, and should, unless and to the extent otherwise directed by the company, provide all permits and licenses and comply with all governmental laws and regulations, and pay the amount of any occupation and merchant's license tax, and any similar license, tax or fee in respect to the sale of goods and the operation of the business on said premises; that Smith should indemnify the defendant from any and all losses, liabilities, damages and claims, which should arise or grow out of any injury to, or death of, persons (including Smith and employees of the defendant), or injury or damage to property (including property of defendant, Smith and employees of either) caused by or resulting from the use or condition of said premises, tanks, pumps, equipment and other facilities, etc.; that the contract should continue for one year and thereafter from year to year subject to the right of either party to terminate the same at the end of the original term or any anniversary date, on thirty days' prior written notice to the other; that the company might terminate the contract on any default by the dealer or suspend its terms during such default; that the contract was not assignable by Smith.
The evidence shows that this form of contract was the same as that used by defendant with all of its dealers regardless as to whether the dealer was a lessee of premises owned by the defendant.
At the time of plaintiff's injury there were employed at the station four men aside from Smith who, as before stated, managed the station. Smith hired and paid the salaries and wages of these men and gave them orders. The four employees were dressed in blue and red uniforms of like character each of which had an insignia or design thereon of a Flying Red Horse and underneath thereof the words: "Mobile Gas." These insignia were trade-marks of the defendant. Defendant did not furnish these uniforms but gave Smith the names of four companies from any one of which they might be purchased by him. There was an overhead sign at the station reading "Socony Vacuum Products" and over the grease rack a sign reading "Mobile Lubrication" and on the pumps were the words "Mobile Gas" and "Mobile Ethyl Gas." These were also trade-marks of the defendant. There were banners strung from one end of the station to the other marked "Mobile Gas" and "Products of Socony Vacuum Oil Company."
Defendant's district manager testified that it had in its employ one Hayes, who held the position of "Retail Merchandiser," whose duty it was to make regular calls on the retail "outlets" of the defendant and help them merchandise and market defendant's products; make suggestions and advise the operators of the retail outlets and help them; that "We try to maintain at our retail operations a standard of appearance and service." There was other evidence that Hayes was defendant's "supervisor." There was evidence that the new arrangement between Smith and the defendant was negotiated by Hayes and that he signed the lease as a witness thereto.
The evidence shows that defendant furnished credit cards to...
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