Greenberg v. Mobil Oil Corporation

• Court: U.S. District Court — Northern District of Texas
• Writing for the Court: Ronald L. Neill, Dallas, Tex., for defendant Mobil Oil Corp
• Citation: Greenberg v. Mobil Oil Corporation, 318 F.Supp. 1025 (N.D. Tex. 1970)
• Decision Date: 05 August 1970
• Docket Number: Civ. A. No. 4-1093.
• Parties: Gary GREENBERG et al. v. MOBIL OIL CORPORATION et al.

318 F. Supp. 1025

Gary GREENBERG et al. v. MOBIL OIL CORPORATION et al.

Civ. A. No. 4-1093.

United States District Court, N. D. Texas, Fort Worth Division.

August 5, 1970.

David M. Kendall, Jr., J. M. Hoppenstein, Dallas, Tex., for plaintiffs.

Ronald L. Neill, Dallas, Tex., for defendant Mobil Oil Corp.

Buddy Robinson, pro se.

Jerry Don Tolly, pro se.

MEMORANDUM OPINION

BREWSTER, District Judge.

Gary Greenberg and his father filed this suit against Mobil Oil Corporation, Buddy Robinson and Jerry Don Tolly for damages for personal injuries sustained by Gary Greenberg when he was a minor. After a jury trial, the plaintiffs have filed a motion for judgment n. o. v., or in the alternative for a new trial.

This case grew out of an unfortunate incident where Jerry Don Tolly, one of the defendants, shot Gary Greenberg, one of the plaintiffs, with a small caliber pistol. The injury from the gunshot wound was critical, but an operation brought about a miraculous recovery that enabled the injured party even to participate in college intramural athletics, including football, within a little more than six months after he was wounded.

Tolly was working as the night attendant in a filling station which sold Mobil products. Robinson was the operator of the station. The defendants¹ claim that Robinson was an independent contractor. The contractual documents fully support that position. The plaintiffs contend that the contractual instruments are a mere sham, and that Robinson was operating the station as an employee of defendant, Mobil Oil Corporation.

The case has been tried before a jury; and, by its verdict in answer to special interrogatories, the jury found:

1. Tolly fired the bullet which inflicted the injury without intending that it strike Gary Greenberg.

2. Tolly was not acting within the scope of his employment for Robinson in firing the shot which struck Gary Greenberg.

3. At the time of the shooting, Robinson was operating the filling station in question as an independent contractor.

4. $50,000.00 would be the amount, if paid now in cash, that would be required to compensate Gary Greenberg for his injuries.²

5. No exemplary damages should be awarded.

Each of the defendants is entitled to a judgment on the verdict unless judgment for the plaintiffs is required as a matter of law.

The plaintiffs claim in their motion now before the Court that the undisputed evidence entitles them to a joint and several judgment against all the defendants as a matter of law. In the alternative, they say that they are entitled to a judgment severally against the defendant Tolly, notwithstanding the verdict, because his plea of guilty to a charge of assault to murder growing out of this transaction collaterally estopped him to deny his intention to shoot the plaintiff, Gary Greenberg. Further in the alternative, they ask that they be granted a new trial. The Court has concluded that the motion should be overruled in its entirety for each of the following reasons:

A. In regard to the motion for judgment n. o. v. —

1. Mobil is entitled to judgment (1) as a matter of law, (2) upon the jury finding that Robinson was operating the station as an independent contractor, and (3) upon the jury finding that Tolly fired the bullet which struck Greenberg without intending to hit him.

2. Robinson is entitled to judgment (1) upon the jury finding that Tolly was not acting within the scope of his employment in firing the shot in question, and (2) upon the jury finding that Tolly fired the bullet which struck Greenberg without intending to hit him.

3. Tolly is entitled to judgment upon the jury finding that he fired the shot which struck Greenberg without intending to hit him.

4. Each of the jury findings mentioned in 1, 2 and 3 above is supported by the evidence.

B. In regard to the motion for new trial —

1. There was no reversible error in regard to the plaintiffs' action against any of the defendants.

2. Any procedural error during the trial would not warrant a new trial as to Mobil because (1) it was entitled to judgment as a matter of law, and (2) such error could not have affected each of the two jury findings which independently entitled Mobil to a judgment on the verdict.

3. Any procedural error during the trial would not warrant a new trial as to Robinson because no such error could affect each of the two jury findings which independently entitled Robinson to a judgment on the verdict.

Mobil filed a motion for summary judgment in the early stages of the case, and renewed it shortly before the trial, after discovery had been completed. In the hearing held at the first presentation, the Court informed the parties that he was of the opinion that such a motion should not be granted on the basis of documents supported only by affidavits in a case of this kind where the facts were involved, and that the motion could be presented again after development of the evidence by discovery. At the second presentation, the Court decided that, although the proof during the discovery procedure was fairly complete, it would be advisable to require a full development of the facts in an evidentiary trial. The motion was carried along with the case.³

Discovery was extensive, and approached the point of being burdensome to Mobil. The plaintiff's interrogatories and motion for production of documents covered the waterfront. The first set of interrogatories contained 70 numbered questions, and the second set, 35 numbered interrogatories. Some of the interrogatories had several subdivisions. They dealt not only with the operation of the filling station in question, but with the manner of operating "Mobil gasoline service stations throughout the United States." (Emphasis supplied). Demand was made for the production of "copies of all advertising material, used in all national advertising programs carried out by MOBIL OIL CORPORATION during the period that BUDDY ROBINSON operated a Mobil Gasoline Service Station." (Emphasis supplied). Mobil objected to the scope of some of plaintiffs' discovery; but the Court resolved the doubts, as far as was reasonably possible, in favor of producing the information and laying the cards on the table. Mobil complied.

Mobil moved for an instructed verdict at the close of plaintiffs' evidence and again at the close of all the evidence. One ground of the motions was that the evidence showed as a matter of law that Robinson was an independent contractor, and not an agent of Mobil, in the operation of his filling station at the time in question. In connection with the motion presented at the close of the evidence, the Court stated that he was of the opinion that Mobil was entitled to judgment as a matter of law, but that he would follow the recommended practice of submitting to the jury possible fact issues relating to Mobil so as to avoid the necessity of a remand if it should be later determined that liability did not exist as a matter of law.⁴ The jury's finding in favor of Mobil on the independent contractor issue makes it unnecessary for the Court to follow up on Mobil's motion for instructed verdict; but the plaintiffs' motion for new trial requires that Mobil's liability as a matter of law be discussed in connection with the question of whether any procedural error in regard to Mobil was prejudicial.

Since this is a diversity action, liability must be determined under the law of Texas. The Court's opinion that Mobil was not liable as a matter of law is based upon Texas cases such as Carter Publications v. Davis, Tex.Civ.App., 68 S.W.2d 640, writ refused; Texas Company v. Wheat, 140 Tex. 468, 168 S.W.2d 632; Humble Oil & Ref. Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995; Frye v. Sinclair Oil & Gas Co., Tex.Civ. App., 249 S.W.2d 102, writ refused; Mid-Continent Freight Lines, Inc. v. Carter Publications, Inc., Tex.Civ.App., 336 S.W.2d 885, writ refused; McGee v. Phillips Petroleum Company, Tex.Civ.App., 373 S.W.2d 773, err. ref. n. r. e.; Newspapers, Inc. v. Love, Tex.S.Ct., 380 S.W. 2d 582. The evidence in this case conclusively established the dealer type of relationship between Mobil, lessor, and Robinson, lessee, under which Robinson was the owner of the filling station business and had control over the details of the operation of it. The fact that the contracts required the maintenance of certain minimum standards at the station, that Mobil conducted voluntary schools for its lessee-operators, and the fact that at times it made helpful suggestions for their mutual benefit, did not change the relationship between Mobil and Robinson to that of employer and employee. The following is quoted from discussions by the Supreme Court of Texas of this type of relationship in Humble Oil & Ref. Co. v. Martin and Texas Company v. Wheat, both supra.

Humble Oil & Ref. Co. v. Martin, 222 S.W.2d at p. 998:

"The evidence above discussed serves to distinguish the instant case from Texas Company v. Wheat, 140 Tex. 468, 168 S.W.2d 632, upon which petitioner Humble principally relies. In that case the evidence differed greatly from that now before us. It clearly showed a `dealer' type of relationship in which the lessee in charge of the filling station purchased from his landlord, The Texas Company, and sold as his own, and was free to sell at his own price and on his own credit terms, the company products purchased as well as the products of other oil companies. The contracts contained no provision requiring the lessee to perform any duty The Texas Company might see fit to impose on him, nor did the company pay any part of the lessee's operating expenses, nor control the working hours of the station. * * *"

Texas Company v. Wheat, 168 S.W.2d at p. 635:

"The contract between the company and Gossen on its face, as evidenced by the written instruments, created the relation of landlord and tenant, and not the relation of master and servant, and we find nothing in the evidence to indicate that the contract, as written,

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