Gulf Refining Co. v. Rogers

• Decision Date: 12 January 1933
• Docket Number: No. 1302.,1302.
• Citation: 57 S.W.2d 183
• Parties: GULF REFINING CO. v. ROGERS et al.
• Court: Texas Court of Appeals

57 S.W.2d 183

GULF REFINING CO. v. ROGERS et al.

No. 1302.

Court of Civil Appeals of Texas. Waco.

January 12, 1933.

Rehearing Denied February 16, 1933.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by Elbert Rogers and another against the Gulf Refining Company and another. From an adverse judgment, named defendant appeals.

Affirmed in part, and in part reversed and rendered.

Seay, Seay, Malone & Lipscomb, of Dallas, and Bryan & Maxwell, of Waco, for appellant.

Witt, Terrell & Witt, C. S. Farmer, and Munroe & Holt, all of Waco, for appellees.

ALEXANDER, Justice.

This suit was brought by Elbert Rogers and the Texas Employers' Insurance Association against the Gulf Refining Company and Dan Russell to recover damages for personal injuries alleged to have been sustained by Rogers. The defendant Gulf Refining Company owned a gasoline filling station at West, Tex., which station was operated by Dan Russell under a written contract. Elbert Rogers drove his automobile into the filling station for the purpose of having the tank filled with gasoline. Ernest Johnson, one of the employees at the station, undertook to service the car, and in doing so negligently spilled gasoline on the floor thereof. The gasoline came in contact with a hot exhaust pipe, causing it to ignite, and as a consequence Rogers was severely burned. Rogers was an employee of the Western States Grocery Company, and was insured under the Workmen's Compensation Act (Vernon's Ann. Civ. St. arts. 8306-8309) by the Texas Employers' Insurance Association. The plaintiffs alleged that Dan Russell and Ernest Johnson were the agents and employees of the Gulf Refining Company, and that the latter was responsible for their acts. Rogers sought to recover damages for the personal injuries sustained by him, and the Texas Employers' Insurance Association sued to recover for the medical bills and compensation that it had been required to pay, and would be required to pay in the future to Rogers, under the Workmen's Compensation Act.

A trial by jury resulted in a verdict and judgment against the Gulf Refining Company and in favor of Rogers in the sum of $23,971.60, and in favor of Texas Employers' Insurance Association in the sum of $1,028.40. The Gulf Refining Company appealed.

The appellant contends that Dan Russell was operating the filling station as an independent contractor, and that Ernest Johnson, whose negligence caused the injury, was a servant of the said Dan Russell, and not a servant of the appellant. The appellees alleged, and the jury found, that Dan Russell was not an independent contractor, but was an agent of the Gulf Refining Company, and that Ernest Johnson was appellant's employee. Appellant contends that the evidence was insufficient to support the verdict. The appellant owned the filling station. It introduced in evidence a written contract between itself and Dan Russell by which it appointed Russell its commission agent to sell its gasoline, oil, and other products through said station. It agreed to deliver the station and all equipment to said Russell, and he, for a certain commission on the products so sold, agreed to employ all help, and to operate the station at his own expense. The products were to be consigned to Russell, title to remain in appellant until the goods were sold and he was to sell same at such prices only as appellant might fix from time to time. He was to sell for cash only, except that he could sell on credit to such persons and on such terms as authorized by appellant. He was not permitted to sell any other products of petroleum on the premises except those so furnished by appellant. He was authorized to conduct any other business on said premises not inconsistent with the storage and sale of appellant's products; but in the event he elected to do so he was required to maintain a sign on the door or window of the building indicating the portion of the business which was his own personal business, and was not to use the company's name in connection therewith. The contract bound Russell to be responsible for all damages to the public caused by him or his servants. It could be terminated at any time at the will of either party. The testimony showed that the representatives of appellant made regular and frequent inspections of the filling station, checked the books and credit accounts, and suggested to the employees and directed them as to the manner in which the station should be run. They gave said employees instructions about keeping the station clean, and about keeping towels, soap, ice water, etc., for the customers. They instructed the employees how to service cars; and, if an employee failed to service a car properly, he was corrected by said representatives and shown how to do the work. There was evidence that said representatives of appellant instructed Russell that employees about the station whose services were unsatisfactory to the Gulf Refining Company should be dismissed, and that on one occasion, after the accident in question, one of said representatives instructed Russell to discharge one of the employees, and that, rather than do so, Russell surrendered the station. Russell was authorized to and did sell gasoline on credit to holders of courtesy cards issued by the appellant from its home office without inquiry as to the financial standing of the purchasers. When such sales were made, Russell would later receive his commission thereon from the company's home office. The company filled the gasoline tanks and supplied necessary oils when needed without consulting Russell. The station was equipped with a regular "Gulf Refining Company" sign, about thirty feet in length, and with another one of the company's regular, "That Good Gulf Gasoline," signs. All records were required to be kept on appellant's stationery, and the employees wore Gulf Refining Company uniforms. Rogers testified that he went to the station because he thought it was a Gulf Refining Company station, in order to receive the service usually supplied by company-owned and operated stations.

In determining whether or not one is an employee or an independent contractor, the most important element to be considered is whether or not the employer has the power or right to control and direct the employee in the material details as to how the work is to be performed. If the employer has the power to control the workman in the manner in which the work is to be performed, the workman is an employee and not an independent contractor. King v. Galloway (Tex. Com. App.) 284 S. W. 942; Maryland Casualty Co. v. Kent (Tex. Com. App.) 3 S.W.(2d) 414; Texas Employers' Ins. Ass'n v. Owen (Tex. Com. App.) 298 S. W. 542; Maryland Casualty Co. v. Donnelly (Tex. Civ. App.) 50 S. W.(2d) 388.

It will be seen that under the contract between appellant and Russell, the company had the right to control Russell in many respects with reference to the manner and means by which he was to perform the services contracted for. The gasoline and other products were to be consigned to Russell; the title thereto to remain in the company until sold by him. He could sell for cash only, except when specially authorized by the company. He was authorized to handle only the petroleum products of the company. He could sell only at such prices as fixed by it. He was required to make regular reports as to the manner in which the business was being conducted, and the company could terminate the contract at any time that it saw fit. Contracts very similar to this have been held to create the relation of master and servant, and not that of employer and independent contractor. Maryland Casualty Co. v. Kent (Tex. Civ. App.) 271 S. W. 929; Id. (Tex. Com. App.) 3 S.W.(2d) 414; Dr. Pepper Bottling Co. v. Rainboldt (Tex. Civ. App.) 40 S.W.(2d) 827, par. 1, and authorities there cited.

Moreover, Elbert Rogers was not a party to the written contract between the Gulf Refining Company and Russell, and the terms thereof are not conclusive against him in determining the relationship actually existing between the contracting parties. He was entitled to establish the facts showing the relation as it actually existed at the time of the injury. Norwich Union Ins. Co. v. Chancellor (Tex. Com. App.) 5 S.W.(2d) 494, par. 5. Even though the contract as originally entered into nominally created the relationship of employer and independent contractor, yet if such contract was a subterfuge, or if the employer thereafter assumed and actually exercised control over the means and methods by which the work was to be performed, the relation of master and servant existed between it and Russell and his employees, and the mere fact that the contract as written was so drawn for the purpose of creating the relation of independent contractor would not relieve the company of liability for the negligence of such servants. 39 C. J. 37; Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399; Oriental Investment Co. v. Barclay 25 Tex. Civ. App. 543, 64 S. W. 80 (writ denied); Texas Building Co. v. Reed (Tex. Civ. App.) 169 S. W. 211. The written...