Humble Oil & Refining Co. v. Martin

• Decision Date: 08 December 1948
• Docket Number: No. 9738.,9738.
• Citation: 216 S.W.2d 251
• Parties: HUMBLE OIL & REFINING CO. v. MARTIN et al.
• Court: Texas Court of Appeals

Page 251

216 S.W.2d 251

HUMBLE OIL & REFINING CO. v. MARTIN et al.

No. 9738.

Court of Civil Appeals of Texas. Austin.

December 8, 1948.

Rehearing Denied December 31, 1948.

Appeal from District Court, Ninety-eighth District, Travis County; Chas. O. Betts, Judge.

Suit by George F. Martin for himself and as next friend for his two minor daughters against Humble Oil & Refining Company and A. C. Love and his wife to recover for personal injuries sustained by the three Martins when struck by an automobile owned by the Loves. From a judgment in favor of the three Martins against the oil company and Mrs. A. C. Love, jointly and severally, and in favor of Mrs. A. C. Love over and against the oil company to recover for any sums which she might pay on the Martin judgment, the oil company appeals generally, and Mrs. A. C. Love appeals only from the portion of the judgment against her.

Judgment reformed and affirmed.

Hart, Brown & Sparks and Looney & Clark, all of Austin, for appellant.

John D. Cofer and J. L. McGarity, both of Austin, for appellees.

HUGHES, Justice.

A personal injury suit in which appellee George F. Martin, for himself and as next friend for his two minor daughters, sued Humble Oil and Refining Company and Mr. and Mrs. A. C. Love for damages for personal injuries sustained by the three Martins on May 12, 1947, when an automobile owned by the Loves rolled, unoccupied, from a Humble filling station located at West 12th Street and West Avenue, in the City of Austin, across 12th Street, over the curb on the south side of 12th Street and on to the Martin property, where it struck Mr. Martin and his two daughters.

Upon a special issue verdict returned by the jury, money judgments, in varying sums, were rendered for the three Martins against the Humble and Mrs. A. C. Love, jointly and severally. Judgment in favor of Mrs. Love, over and against the Humble was rendered for the recovery of any sums which she might pay on the Martin judgments.

Humble appeals from the judgment generally. Mrs. Love appeals only from that portion of the judgment in which the Martins recovered against her.

Humble disclaims any and all liability on the ground that no act of negligence, alleged or proved, is attributable to any of its employees, agents or representatives. Thus it puts in issue the nature of the legal relationship existing between Humble and the persons who operated or were employed in the filling station.

The basic facts, either undisputed or found by the jury, are:

Humble owns the filling station which is operated by W. T. Schneider under a written "commission agency agreement" in which Humble is designated as "Company" and Schneider as "Agent," the material parts of which follow:

"`Agent' agrees:

"1. * * * To sell and distribute through said station the goods and products supplied by Company; to collect all moneys that may be due the Company for goods sold by him; to look after and properly care for all property of the Company that may be placed in his charge, keep the service station premises in a clean, healthful and attractive condition to the satisfaction of the Company's representative, and display properly all advertising matter supplied him; to make reports and perform other duties in connection with the operation of said station that may be required of him from time to time by Company; and faithfully and accurately to account for all funds, goods, products and property of every kind belonging to Company coming into his possession or under his control. * * *

"2. Agent shall hire, at his expense, such laborers and assistants as shall be necessary in accomplishing the purposes of his agency hereunder, such laborers and assistants to be his employes, and subject only to his control and direction, and for whose acts and conduct, and the losses and damages resulting therefrom, Agent shall be responsible and liable. Agent shall not employ any person for or on behalf of the Company, except by special written permission of Company, and then only to perform the work designated in writing. Agent shall pay all expenses incident to the proper operation and maintenance of said service station, including, without limiting the foregoing, expense of gas, electric light and power, telephone, fuel, ice and water.

"3. All sales made by Agent shall be at the prices fixed by Company from time to time and shall be for cash only or at credit on such time, in such amounts and to such customers only as may be specifically authorized by Company in writing.

"4. Agent agrees to remit to Company daily all amounts collected by him for goods sold and all other amounts due by him to Company, unless otherwise instructed in writing. * * *

* * * * * *

"6. In full payment for all sales made and all services performed by Agent and his employees hereunder, Company agrees to pay Agent commissions per schedule * * * attached. * * *

* * * * * *

"It is distinctly understood that such business as the Agent shall conduct in his own right shall be at his own risk and expense; that the business to be conducted by him shall be of a character to be approved by the Company in writing, and that Agent's conduct of such business shall in nowise interfere with the Company's business in the sale of its products at such station. Agent agrees that except as so authorized in writing by Company said station premises shall be used exclusively for the storage, advertisement and sale of Company products and that no petroleum products other than those supplied him by Company shall be kept or sold on such premises.

"8. This appointment and all arrangements for the rent of space for use in Agent's own business provided for in the preceding paragraph are revocable at the will of Company, with or without cause, and Agent will be entitled to commissions only on moneys collected and remitted prior to the termination of his agency."

Besides the agent, Schneider, there were only two persons employed in the station, W. V. Manis and a Negro, Dan Pete Robinson, each of whom testified that Schneider hired and paid him, instructed each as to his duties, and was his only boss.

Only Humble petroleum products were sold by the station.

The cement floor space of the station covers substantially all of the station area except the office. There are four gasoline pumps on a platform elevated above the surrounding cement driveway; this platform is 27 feet long, runs east and west, and there is space between it and the office for two cars.

The driveway surrounding the pump platform is sloping; the slope from east to west is 6 inches or a drop of 2 inches between the front and rear wheels of an ordinary automobile parked on this area. Westward and south from the west end of the pump platform the slope towards 12th Street is more abrupt. These slopes are apparent to the naked eye.

About noon on May 12, 1947, Mrs. Love drove her car into the Humble station from West 12th Street, stopping in the outside lane south of the pump platform, between the pumps and about 2 feet from and parallel with the pump platform. The car was then facing southwest toward 12th Street.

At this time there were three cars on the inside lane between the pump platform and the office. Manis, the only employee then present, was servicing one of these cars which belonged to Frank Knight. Mrs. Love, while seated in her car, told Manis she wanted a change of oil and the car greased. Manis replied, "Pete is not here, but as soon as he comes back, I will give him the job of fixing your car." Mrs. Love continued to sit in her car for a few minutes when she said to Manis, "I want to get some groceries at the store; will it be all right to leave my car here and go get them," and Manis replied, "that is perfectly all right; leave it right where it is and I will have Pete get it as soon as he gets back." Mrs. Love then killed the motor, put the car in reverse gear and left the station. She did not set the hand brake. The gears and clutch of the Love car were shown to be in good condition.

No one is shown to have touched the Love car from the time Mrs. Love left it until it was seen to slowly commence rolling. Manis was in the office when he saw the Love car crossing 12th Street. This, according to his testimony, was two or three minutes from the time Mrs. Love told him she was going to the store.

Manis testified that during the three years he had worked at this station it was the practice of customers to set the brakes or engage the gears on cars to prevent them from rolling.

Humble's pleading upon which it went to trial contained these allegations:

"Specially answering, this defendant says that a few minutes prior to the accident described in plaintiffs' amended petition, Mrs. A. C. Love drove her car into this defendant's filling station and stopped it on the cement platform South of the gasoline pumps, and asked permission to leave her car at said place until this defendant's employee should complete the work which he was doing on other cars and could service Mrs. Love's car. This defendant's employee gave Mrs. Love the permission she requested. Mrs. Love thereupon got out of her car and left it unoccupied at the place where she had stopped it, knowing that this defendant's employee could not give attention to her car until after he had finished the work he was going on another car. None of this defendant's employees touched or came into contact with or did or caused anything to be done to Mrs. Love's car at any time after she drove it into this defendant's station on the occasion in question. * * *

"* * * upon this occasion this defendant's employee at said station assumed and believed, and had the right to assume and believe, that Mrs. Love had followed this custom and practice and had exercised due care to fix her car...