Garnant v. Shell Petroleum Corp.

• Decision Date: 06 November 1933
• Citation: 65 S.W.2d 1052,228 Mo.App. 256
• Parties: THOMAS GARNANT, RESPONDENT, v. SHELL PETROLEUM CORP., APPELLANT
• Court: Kansas Court of Appeals

65 S.W.2d 1052

228 Mo.App. 256

THOMAS GARNANT, RESPONDENT, v. SHELL PETROLEUM CORP., APPELLANT

Court of Appeals of Missouri, Kansas City

November 6, 1933

Appeal from Circuit Court of Clinton County.--Hon. Guy B. Park Judge.

AFFIRMED.

Judgment affirmed.

Elton T. Harris and Randolph & Randolph for respondent.

Thompson Mitchell, Thompson & Young, Charles H. Wagner and Malcolm E Grant for appellant.

OPINION

SHAIN, P. J.

This case originated before the Workmen's Compensation Commission. A final award was obtained from two members, one member dissenting. The cause was appealed to the Circuit Court and the award of the Commission was there affirmed. From the judgment of the circuit court, the defendant has duly prosecuted its appeal to this court.

The facts as gathered from the record show that prior to and on June 11, 1930, one Cleo Runnels owned a building and some equipment commonly designated as a filling station. On June 11, 1930, Runnels and his wife, Ruth E. Runnels, executed a lease of said premises to the Shell Petroleum Corporation, a Virginia corporation, the defendant herein. Said lease was accepted and the same attested by A. S. N. Payne, regional manager for defendant. The consideration in said lease was, that as rent for said premises, defendant was to pay lessors one-half cent per gallon on all gasoline sold. Defendant further convenanted to operate said station in a business-like manner and endeavor to promote and increase the sale of gasoline at said station.

The equipment referred to in the lease is shown to consist of items shown by inventory marked Exhibit A, which is in words and figures as follows:

"Exhibit 'A'

"1--12' X 12' Frame Building with 14 ft. canopy thereon.

"1--Hobart Air Compressor with 16 gallon Tank--with Attachments.

"2--C-615 10 Gal. Hand Lift Wayne Visible Pumps.

"2--550 Gal. # 12 G. A. Galv. Under Ground Tanks."

On August 1, 1930, the defendant entered into a contract with Cleo Runnels to run and operate the filling station leased as above set forth.

This contract of employment is so germane to the issues presented in this case that we here set the same out in full as follows:

"Contract.

"1. This Agreement, made and entered into this 1st day of Aug., 1930, by and between Shell Petroleum Corporation, a corporation with its principal office in the City of St. Louis, Missouri, herein designated as First Party, and Cleo Runnels, of the County of Davies, State of Missouri, herein designated as Second Party.

"Witnesseth:

"2. First Party does hereby employ Second Party to superintend and operate its service station for the sale of gasoline and other petroleum products, commercially known as Shell Products, upon the following described premises in the City of Cameron, County of Clinton, and State of Missouri, to-wit:

"One Frame Building 12 ft. X 12 ft. with 14 ft. canopy thereon with ingress and egress to light, water, heat and driveway situated on that part of E. G. Kerns property adjoining U.S. Highway No. 36 on the South and West side of said highway described as follows: Beginning at the Southeast corner of said tract running thence West one Hundred (100) feet, thence North to Highway right of way, thence Southeast along said Highway right of way to place of beginning, all in the E 1/2 of the NE 1/4 of Section 23, Township 57, Range 30.

"Said employment to continue so long as Second Party complies with the terms and conditions herein set forth.

"3. Second Party agrees during the term of his employment to handle, deal in, advertise and dispense only the petroleum products of First Party, and that he will not sell or deal in petroleum products of any other manufacturer, jobber or agent.

"4. Second Party is given the right to handle and deal in automobile accessories in his own name, in his own behalf and on his personal account, but not in the name or in behalf of First Party. Provided, however, that the exercise of said right shall not interfere with the proper operation of said filling station, its appearance, or with any advertising incident to the sale of Shell Products.

"5. Second Party agrees that he will operate said filling station in compliance with the rules, regulations and directions of First Party and in a manner satisfactory to First Party, of which First Party shall be the sole judge.

"6. Second Party agrees that he will sell only Shell Petroleum products from said filling station and only for cash, unless specific permission is granted by First Party to extend credit and that any credit sales made without such specific permission will be for his account alone; that he will not purchase supplies or equipment on credit of First Party; that he will devote his entire time and best efforts to the promotion of sales of said Shell Products from said station.

"7. Second Party agrees to sell and dispense gasoline and other petroleum products from said station furnished him by First Party, at prices named by First Party from time to time, and agrees that he will not sell below the prices so named.

"8. Second Party agrees in the event he should desire to resign or cease said employment that he will give thirty (30) days' notice in writing to First Party of his intention so to do.

"9. It is understood that if First Party holds the premises above described under a lease that this contract shall end and terminate with the termination of said lease for any cause.

"10. Second Party further agrees whenever Shell gasoline is delivered to him to deposit with First Party a sum of money equal to the sales price thereof, less his commissions provided for herein, and whenever other petroleum products are delivered to him to deposit with First Party, in cash, the price of said products established by First Party in said community, less the discounts then prevailing at such place. First Party may grant time for the payment of such products, but in such case Second Party agrees to pay for same within the time specified.

"11. First Party, during the term of employment of Second Party, agrees to pay Second Party a commission on all gasoline delivered at said filling station of three (3c) cents per gallon, the same to be deducted from resale price as provided above. On all lubricating oils and greases delivered at said filling station during said term First Party agrees to allow the discounts from list or retail price current at such place and time on the quantity delivered as set forth in First Party's Lubricating Oil Quantity Discount Agreement, a copy of which is attached hereto and marked exhibit 'B.'

"12. Second Party agrees that during the term of his employment under this contract he will be responsible for and will pay all the current expenses incident to the operation of said filling station and that he will replace at his own cost all or any portion of the property, equipment or appliances loaned or supplied to him by First Party for the proper operation of said Filling station which may be lost, stolen, destroyed, broken or damaged through no fault of the First Party; and said replacement shall be by property of equal value; loss occasioned by normal wear or tear only excepted.

"13. Second Party further agrees that he has read the list of such equipment and appliances attached hereto (marked Exhibit A) and hereby acknowledges receipt and possession of the items listed therein.

"14. Second Party does agree to hold First Party harmless for any and all claims, damages, or loss of whatsoever kind or character which may arise, or are occasioned by the operation of said station, whether said loss or damage is sustained by the Second Party, his agents, employees or persons other than the parties to this contract, or the property of either of said parties.

"15. First Party agrees to refund to Second Party, in the event this contract is terminated by either party under its provisions, the amount paid to First Party for gasoline or other petroleum products unsold and on hand at such time.

"16. It is the understanding that after petroleum products are delivered to Second Party that said Second Party assumes all responsibility for loss or damage to same by reason of leakage, fire, theft, flood, the acts of God, or unaccountable or unexplained losses.

"In Witness Whereof, the parties hereto have executed this instrument the day and year first above written.

"SHELL PETROLEUM CORPORATION

"By H. C. HALL

"(Seal)

"CLEO RUNNELS

"Witness:

"H. J. SCHUKUT.

"Exhibit 'A'

"2 Shell Pump Globes and 2 Super Shell Pump Globes

"4--30 Gal. Bennett Hi-Boys Lube Cabinets

"1--65 Gal. Bennett Kerosene Cabinet

"2--42 Inch Lighted Signs and Standards

"This cancels any previous contract of employment.

"CLEO RUNNELS."

The evidence discloses that Cleo Runnels, in place of individually running the station in question, hired his nephew one George Pittman as his agent to operate the station. It appears from the evidence that Runnels came around, generally on Mondays, to check up with Pittman. Runnels testified that while Pittman was his agent with full power and control to run and operate the station, that still he never gave Pittman any right to hire anybody; that although the hours were long he expected Pittman to stay there and that he expected his wife to take him his lunch. Runnels testified that he had instructed Pittman to keep the station open from six (6) to nine (9) a period of fifteen hours.

It was shown by the evidence that Pittman employed the claimant as a relief man at the station and that claimant received one dollar if half day or less and two dollars if over one-half day and it was shown that claimant was paid from the cash drawer where the money for sales was placed.

It was shown that when claimant was working at the station he...