Coe v. Esau

• Decision Date: 08 January 1963
• Docket Number: No. 39854,39854
• Citation: Coe v. Esau, 377 P.2d 815, 1963 OK 1 (Okla. 1963)
• Parties: George G. COE, Plaintiff in Error, v. Fred ESAU and Continental Company, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 815

377 P.2d 815

1963 OK 1

George G. COE, Plaintiff in Error, v. Fred ESAU and Continental Company, Defendants in Error.

No. 39854.

Supreme Court of Oklahoma.

Jan. 8, 1963.

Syllabus by the Court.

1. The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence but also its nature and extent, rests ordinarily upon the party who alleges it.

2. Whether relation of master and servant exists between lessor of gasoline filling station and its lessee so as to render the doctrine of respondeat superior applicable depends on whether lessor had the right to control lessee in the details of the work to be performed in the operation and management of the station.

3. Tenancy alone will not render the landlord liable for the tort of his tenant, and neither the mere fact of ownership of property nor that goods marketed under the trade name of the landlord are advertised and sold upon the demised premises is deemed sufficient to show that the lesseevendor is the agent or employee of the owner-lessor.

4. Where evidence concerning the status of parties defendant is reasonably susceptible of but a single inference, the question of their legal relationship is one purely of law.

5. The essential elements of a cause of action based on negligence may be inferred from all the facts and circumstances, and where the circumstances are such as to remove the case from the realm of conjecture and place it within the sphere of legitimate and rational inferences from established facts, a prima facie case is made.

6. All facts which the evidence tends to prove in the slightest degree and all inferences and conclusions which may be reasonably and logically drawn therefrom stand admitted by a demurrer to the evidence, and the trial court cannot weigh conflicting evidence, but must treat as withdrawn from his consideration all evidence which is most favorable to the demurrant.

Appeal from the Court of Common Pleas of Tulsa County; C. E. Allen, Judge.

Action by George G. Coe against Fred Esau, filling station operator, and Continental Oil Company, owner of station premises, to recover for damage to his automobile engine from lack of lubrication caused by the escape of oil through a faulty gasket installed on the oil filter by station operator. Trial court sustained a demurrer to the evidence interposed by each defendant and plaintiff appeals. Affirmed in part and reversed in part, and cause remanded with directions.

Frank R. Hickman, Tulsa, for plaintiff in error.

Covington & Gibbon and James E. Poe, Tulsa, for defendants in error.

BERRY, Justice.

This action was brought below by George G. Coe, a dental practitioner, against Fred Esau, a filling station operator, and Continental Oil Company, owner of the station premises, to recover for damage to his automobile from lack of adequate lubrication occasioned by the escape of oil through a faulty oil filter gasket installed by the station operator. Each of the defendants interposed a demurrer to the evidence adduced by the plaintiff. The trial court sustained the demurrer and rendered judgment for both defendants. Plaintiff has perfected this appeal after his motion for a new trial was denied. Our reference to the parties will be by their surnames or designation below; the corporate defendant, Continental Oil Company, will be called 'Continental'.

The appeal presents two principal questions: (a) Are the facts and circumstances adduced in evidence sufficient to raise an inference that Esau, the station operator, was a mere agent or employee of Continental? (b) Is the evidence of the plaintiff, together with all reasonable inferences deducible therefrom, sufficient to make a prima facie case of actionable negligence? We will discuss these questions in the sequence in which they stand posed.

In support of his argument that Esau was an agent of Continental in the operation of the filling station where the faulty service work was performed upon plaintiff's automobile, plaintiff calls our attention to these facts: (a) Continental owned the premises upon which the filling station in question was situated; (b) Continental's name or trade mark was prominently displayed upon the station premises; (c) The name 'Conoco', Continental's trade mark for its gasoline and oil products, would appear on advertising matter and handbills distributed by Esau; (d) In the classified pages of the Tulsa telephone directory Esau's station was listed under the heading 'Conoco Service Stations' and Continental's triangular trade mark; (e) Esau extended the privilege of charging for gasoline, oil and service sold to all holders of Continental credit cards who were billed directly by Continental; (f) Esau received advice and suggestions from Continental concerning the standard of cleanliness at his station, although he did not have to 'abide' by them; (g) In consideration for the use of the station premises and equipment Esau paid one and one-fourth cents on each gallon of gasoline sold; (h) Although Esau controlled his business hours, he was required to occupy the premises and operate the station 'or he would lose such right'.

As disclosed by the testimony of Esau, his relationship with Continental was governed by a written lease agreement. The exact terms of this agreement are not disclosed by the record. When defendants sought to introduce the lease on cross-examination of Esau (who was called as a witness for the plaintiff) plaintiff interposed an objection to its reception in evidence which the trial court sustained. However, the existence of the written lease agreement is not disputed by plaintiff.

It may be stated as a general rule that tenancy alone will not render the landlord liable for the torts of his tenant. Neither the mere fact of ownership of property nor that goods marketed under the trade mark or trade name of the landlord are advertised and sold upon the demised premises is deemed sufficient to raise an inference that the tenant-vendor is the agent or employee of the landlord. Cities Service Oil Co. v. Kindt, 200 Okl. 64, 190 P.2d 1007, 1011; Greiving v. La Plante, 156 Kan. 196, 131 P.2d 898; 2 C.J.S. Agency § 2, p. 1030. It is indeed a matter of common knowledge and practice that distinctive colors and trade mark signs are displayed at gasoline stations by independent dealers of petroleum product suppliers. These signs an emblems represent no more than notice to the motorist that a given company's products are being marketed at the station. See Cawthon v. Phillips Petroleum Co. (Fla.App.), 124 So.2d 517, 83 A.L.R.2d 1276; Sherman v. Texas Co., 340 Mass. 606, 165 N.E.2d 916; Lindsay v. Francis (Mo.App.), 107 S.W.2d 97; Greiving v. La Plante, supra, and annotations beginning at p. 1292, 83 A.L.R.2d.

Neither can we view the dealer's practice of honoring the producer's credit cards as indicative of a master and servant relationship. The use of such cards constitutes a distinct business advantage to the station operator who is accorded full credit for all purchases made by the card holders. Cities Service Oil Co. v. Kindt, supra; see also Arkansas Fuel Oil Co. et al. v. Scaletta et al., 200 Ark. 645, 140 S.W.2d 684, 689.

The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence but also its nature and extent, rests ordinarily upon the party who alleges it. Barall v. McDonald, 172 Okl. 276, 44 P.2d 997. Whether relation of master and servant does in fact exist between lessor of gasoline station and its lessee so as to render the doctrine of respondeat superior applicable, depends on whether lessor has the right to control, or exercises the right to control, lessee in the details of the work to be performed in the operation and management of the station. Cities Service Oil Co. v. Kindt, supra; Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632.

The facts and circumstances adduced by plaintiff's evidence are insufficient to raise the necessary inference that Continental either had the right to control or exercised the right to control the conduct of Esau in the operation of his station. Esau was free to, and did handle, tires and automotive accessories of other suppliers; he procured his own personnel, determined the daily business hours and the methods of doing business. The petroleum products supplied by Continental were sold to Esau on a cash basis. So far as the record discloses, Esau was not in any way restricted in adopting his own merchandising policies.

Where the undisputed evidence concerning the status of the parties defendant to each other is reasonably susceptible of but a single inference, the question of their legal relationship, be it...