Gulf Refining Co. v. Nations

• Decision Date: 16 January 1933
• Docket Number: 30313
• Court: Mississippi Supreme Court
• Parties: GULF REFINING CO. v. NATIONS

145 So. 327

167 Miss. 315

GULF REFINING CO. v. NATIONS

No. 30313

Supreme Court of Mississippi

January 16, 1933

Division B [Copyrighted Material Omitted]

1. MASTER AND SERVANT. Person in charge of foreign oil corporation's local storage plant held corporation's employee, not independent contractor; hence corporation was liable for assault and battery committed by another employee on oil truck driver.

Under the contract between foreign oil corporation and person in charge of storage facilities and stock of goods, it appealed that corporation owned such storage facilities and stock of goods, and corporation had right to fix size and kind of storage facilities, amount of products kept in stock, selling prices, persons to whom and terms on which credit should be extended, and right to control proceeds of sale. Provisions principally relied on as constituting manager as independent contractor were that he should have entire charge of management of business, pay all license fees, furnish all necessary equipment, drayage, trucks, tank wagons, and his own helpers and employees, pay all expenses of conducting business, and that corporation should not be responsible for negligence of such manager or his employees and that neither manager nor his helpers should be deemed employees of corporation.

2. MASTER AND SERVANT.

Corporation could not retain complete control of business conducted at its local plant, and at same time make person in charge independent contractor.

3. MASTER AND SERVANT.

Employee in charge of foreign corporation's local office during manager's absence held not "fellow servant" of employee assaulted by him; hence corporation was liable therefor.

Suggestion Of Error Overruled February 27, 1933.

APPEAL from chancery court of Lincoln county, HON. V. J. STRICKER, Chancellor.

Suit by Claude Nations against the Gulf Refining Company and others. Decree for complainant, and named defendant appeals. Affirmed.

STATEMENT OF THE CASE.

Appellee filed his bill in the chancery court of Lincoln county against appellant, a foreign corporation organized under the laws of the state of Texas, and S. C. Wilkins and Julian Bentz, resident citizens of Lincoln county, for damages for an unlawful assault and battery committed on him by said Bentz, for which he charged appellant was responsible upon the ground that when such assault and battery was committed Bentz was acting as the agent of the appellant as well as the agent of Wilkins. The chancery court acquired jurisdiction through a foreign attachment against appellant, levied upon its plant and other property in the city of Brookhaven in Lincoln county. There was a trial on original bill, separate answers of appellant and the other two defendants, and upon proofs, resulting in a decree in appellee's favor in the sum of two thousand, five hundred dollars against all the defendants, subjecting appellant's property attached to its payment; from that decree appellant alone prosecutes this appeal.

The theory of appellee's case is that Wilkins and his subagent, Bentz, were the agents of appellant in the conduct of its business, and that in the commission of the assault and battery by Bentz upon the appellee, Bentz was engaged in and about the business of both Wilkins and appellant. Appellant defended upon two principal grounds: (1) That Wilkins, who employed Bentz, was an independent contractor, and therefore the relation of master and servant did not exist between appellant and Bentz. (2) That Bentz, who committed the assault and battery upon appellee, was a fellow servant with appellee and therefore, under the law, appellant was not liable for the tort.

The evidence was sufficient to sustain the material allegations of fact set out in appellee's bill. Probably we would not be able to make a more correct and succinct statement of the case than by setting out the bill, which follows, leaving off the formal parts and the description of the property attached:

"The Gulf Refining Company is a foreign corporation, engaged in the business of refining and selling both at wholesale and retail, oils, greases and gasoline and is doing business in the state of Mississippi. That in its said business the said corporation owns, occupies and uses the following described real estate situated in the City of Brookhaven, Lincon County, Mississippi, to-wit: (Description of land.)

"That the defendant S. C. Wilkins is a resident Agent of the said corporation and that as such has been and is in charge of the said corporation's business in the City of Brookhaven, Lincoln County, Mississippi, and surrounding territory.

"That the defendant, Julian Bentz has been and is employed by defendant corporation as an Assistant to the said Wilkins, having charge of the warehouse and office of said corporation located on the property above described. That the said defendants have for a long time and are now engaged in distributing and selling, both at wholesale and retail, in Lincoln County, Mississippi, and surrounding territory oils, greases and gasoline and that the said defendant, Gulf Refining Company in its said business has caused to be erected on the first piece of property above described a large warehouse and large storage tanks in which warehouse and tanks said corporation keeps its products stored so that it may have same on hand for sale and distribution as ordered, the same being shipped from the Gulf Refining Company of Louisiana to the Gulf Refining Company in the City of Brookhaven and stored in said tanks and in said warehouse until it is sold and delivered. The said Wilkins has been and is the Agent of said corporation, having charge of the said warehouse and storage tanks and the sale and distribution of said products, and the said Bentz has been and now is in charge of the office of said Company and warehouse and grounds, the said Bentz being next in authority to the said Wilkins in this territory.

"That in the sale and distribution of said products the defendants owned and used automobile trucks in which the gasoline, greases and oils are hauled from the storage tanks and warehouse in the city of Brookhaven, to the purchasers from the defendants. That in the operation of said business it was and is necessary for the defendants to employ servants to handle and drive the automobile trucks aforesaid for the purpose of delivering the defendant corporation's products to the purchasers thereof in Lincoln county and surrounding territory. That the drivers of said trucks on the date hereinafter mentioned, prior thereto and now, were and are subject to the orders, directions and control over said drivers in the absence of Wilkins and the said Bentz having full and complete authority and control over the property of the defendant corporation and over the said drivers, subject only to the superior authority of the defendant Wilkins.

"That on June 2, 1931, this complainant was and had been for sometime prior thereto employed by the defendants as a driver of one of the automobile trucks aforesaid. That on the afternoon of the date aforesaid this complainant returned from his trip, delivering the products of the defendant corporation and on such return drove his truck to the defendant's garage which is located on the same property and within the same enclosure as the storage tanks and warehouse aforesaid. Complainant left his truck and went into the warehouse of defendant to ascertain what was yet to be done by him. That when he came into the warehouse, the defendant, Bentz, complainant's superior officer, ordered and directed him to take a trash basket into the yard, to empty it and burn the trash. The said Bentz then stepped from the warehouse into the office and this complainant was preparing to carry out and execute the orders of the said Bentz as it was his duty to do, but before he could carry out and obey said instructions the said Bentz returned into the wareroom, apparently in a very high temper and apparently very mad because this complainant had not immediately taken said trash basket out doors as directed, and said to this complainant: 'I thought I told you to take that trash basket out and empty it,' to which complainant replied 'I am just fixing to,' or words to this effect and complainant immediately started to the trash basket and the said Bentz started to the trash basket at the same time. Complainant picked up the trash basket, put it on his left hip, with his left arm around it, turned his back on the said Bentz and started into the yard to empty the said basket. On his way to the yard complainant met one Stamps, who was also an employee of the said defendant and asked the said Stamps for a match with which to burn the trash in the basket aforesaid. That as complainant was standing still, facing the said Stamps, with his back to the said Bentz waiting for the said Stamps to hand him a match, the said Bentz wilfully and without any cause struck this complainant with a piece of timber two inches thick, four inches wide and about three feet long on the left side of complainant's head. That the said blow was delivered with such force that this complainant was knocked unconscious and remained unconscious for a period of seven days or more, and as a result of said blow was forced to remain in bed for three weeks and was caused to incur bills and expenses for medicine and doctor's services. That by reason of said blow this complainant was caused to suffer excruciating pain and agony and since being struck has been unable to work. Complainant charges on information and belief that by reason of said blow his skull was fractured and that he is permanently and seriously injured and his earning capacity permanently and seriously impaired. That at the time of said injury, complainan...