Brown v. Standard Oil Co.

• Decision Date: 05 June 1944
• Docket Number: No. 15.,15.
• Citation: 309 Mich. 101,14 N.W.2d 797
• Parties: BROWN v. STANDARD OIL CO. et al.
• Court: Michigan Supreme Court

309 Mich. 101

14 N.W.2d 797

BROWN

v.STANDARD OIL CO. et al.

No. 15.

Supreme Court of Michigan.

June 5, 1944.

Action by Isaac Brown, individually and administrator of the estate of William (Willie) Brown, deceased, against the Standard Oil Company and another, for death of employee of an oil station. From a judgment on directed verdicts for defendants, plaintiff appeals.

Judgment for defendant Standard Oil Company affirmed and judgment for defendant Jones reversed and new trial granted.

Appeal from Circuit Court, Wayne County; George B. Murphy, judge.

Before the Entire Bench.

Ralph J. Osborne, of Detroit (Roxborough & Taliaferro, of Detroit, of counsel), for appellants.

Kerr, Lacey & Scroggie, of Detroit (Wilfrid C. Dilworth and Benedict H. Lee, both of Detroit, of counsel), for appellee Standard Oil Co.

STARR, Justice.

On October 11, 1938, while working at a gasoline service station in Detroit, William Brown, about 19 years old, sustained injuries which resulted in his death a few days later. His administrator began the present law action for damages against the Standard Oil Company, which owned the station, and defendant, Al Jones, who leased and operated it.

Jones had operated said station for several years prior to May 5, 1937. On that date defendant company leased the station and the machinery, equipment, appliances, and fixtures connected therewith, to him for a 12-month period. The lease provided for successive renewal periods of six months each and for a monthly rental of $19.50 plus one-half cent per gallon on all gasoline delivered to said station. Jones, as lessee, was required to pay all expenses in connection with the operation of the station and to keep it in good repair. The lease further provided:

‘That none of the provisions of this lease shall be construed as reserving to the lessor any right to exercise any control over the business or operations of the lessee conducted upon the leased premises or to direct in any respects the manner in which any such business and operations shall be conducted, it being understood and agreed that so long as the lessee shall use said premises in a lawful manner as herein provided, the entire control and direction of such activities shall be and remain with the lessee.

‘It is further understood and agreed that lessee shall have no authority to employ any persons as agents or employees for or on behalf of the lessor for any purpose, and that neither the lessee nor any other persons performing any duties or engaging in any work at the request of the lessee upon the leased premises shall be deemed to be employees or agents of the lessor.'

The lease was renewed and defendant Jones was in possession of the station at the time plaintiff's decedent was injured. There was a sign across the front of the building reading, ‘Al Jones Super Service * * * Standard Oil Products.’ The stastion also sold automobile supplies and accessories and furnished services such as washing and greasing cars and changing and repairing tires. Plaintiff's decedent had worked at the station from about February, 1937, until he was injured. He washed cars, filled gasoline tanks, changed tires, sold merchandise, and did miscellaneous work.

On October 11, 1938, a customer of the station brought in a Ford truck with dual rear wheels, the tires on which carried a pressure of about 80 pounds. The tire on one inside wheel was flat. While working at the station, plaintiff's decedent had previously repaired tires on this truck. The customer testified that he told defendant Jones, ‘I have got a flat tire,’ and that Jones replied, ‘All right, I will take care of it.’ It appears that to repair a tire on an inside dual wheel, the customary practice was to remove both wheels and to repair and inflate the tire on the inner wheel while it was so removed. The testimony indicates that on this occasion plaintiff's decedent removed the outer wheel but was unable to take off the inside wheel because he did not have the proper tool or wrench to remove the lugs or nuts. He attempted to do the tire-repair job without removing the inner wheel. He took off the tire, repaired the inner tube, and replaced the tire on the wheel. The casing of the tire was held in place by a steel rim. Apparently he did not replace or adjust the rim properly, because when he inflated the tire, the rim sprung loose and struck him on the head, causing fatal injury.

There was testimony indicating that the safest method would have been for decedent to take off the inner wheel, remove, repair, and replace the tire, affix the steel rim, and then inflate the tire while the wheel was lying on the ground with the rim side underneath. By such method, if the steel rim had sprung loose, it would not have struck him.

At the conclusion of plaintiff's proofs, each defendant moved for a directed verdict. The trial court granted both motions and entered judgment for defendants, from which plaintiff appeals. In considering an appeal from judgment entered on a directed verdict for defendant, we view the testimony in the light most favorable to plaintiff. Lebovics v. Howie, 307 Mich. 326, 11 N.W.2d 906;Arnell v. Gordon, 234 Mich. 140, 207 N.W. 825.

Defendant Standard Company based its motion for a directed verdict on the ground that plaintiff's decedent was not its employee; that the station was leased to and operated by defendant Jones as an independent contractor; that if decedent was determined to be its employee, plaintiff could not recover in this law action because it had elected to come under the provisions of the Workmen's Compensation Law (2 Comp.Laws 1929, § 8407 et seq., as amended, Stat.Ann. and Stat.Ann.1938 Cum.Supp. § 17.141 et seq.); that decedent had not given notice that he elected not to be subject to the provisions of said law; and that plaintiff's remedy, if any, was by proceedings before the department of labor and industry. Plaintiff contended that both decedent and defendant Jones were employees of the Standard Company; that the company exercised complete control and supervision of the operation of the station; that the purported lease to Jones was merely a subterfuge by Standard Company to escape liability as an employer; and that both defendants are liable in damages for their negligence in failing to furnish his decedent with proper tools.

The evidence shows that the station was under lease to and was occupied and conducted by defendant Jones at the time of decedent's injury. It shows that Jones hired and paid station employees, paid the expense in connection with the operation of the station, and generally conducted it as his own business without consultation with or interference by the Standard Company. In Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, 183 N.W. 11, we quoted...