Levine v. Standard Oil Co., Inc., in Ky., 43043
| Decision Date | 04 May 1964 |
| Docket Number | No. 43043,43043 |
| Citation | 163 So.2d 750,249 Miss. 651 |
| Parties | Bellman M. LEVINE v. STANDARD OIL COMPANY, INC., IN KENTUCKY. |
| Court | Mississippi Supreme Court |
Rushing & Guice, Biloxi, for appellant.
Watkins & Eager, William E. Suddath, Jr., Jackson, for appellee.
This case involves the question of whether an oil company, which produces and distributes gasoline and related products, is liable in tort for injuries suffered by a customer at a filling station owned by the company, but leased by it to a person who operated it under the lease as his own business. We hold the oil company is not liable under the present facts for negligence of the operator-lessee.
Bellman M. Levine, appellant, brought this action in the Circuit Court of Harrison County against Howard E. Hearon, Milton Smith, and appellee Standard Oil Company, Inc. in Kentucky (called Standard Oil). At the end of plaintiff's evidence, the trial court gave a peremptory instruction for Standard Oil. This appeal is from that decision. Subsequently the jury returned a verdict against Hearon, the lessee and operator of the filling station, and his employee, Smith, and they have not appealed.
On August 23, 1960 Levine, having trouble with the tires on one of his trucks, took it to a Standard Oil Service Station in Biloxi (operated by Hearon) to have them fixed. On the next morning two of the tires were flat, and he returned. Smith undertook to force the tire off of the wheel by beating it with a hammer. The tire exploded, causing the split rim to fly loose and strike plaintiff, inflicting substantial injuries upon him.
About five years before this date, Hearon leased the service station from its owner, Standard Oil. The lease ran from month to month, with either party having a right to cancel on ten days notice. Hearon agreed to pay as rental $115 a month, plus one-eighth cent per gallon on all petroleum products purchased and received by lessee. He agreed to pay all license fees, taxes, and utility bills; to keep the filling station property in clean, safe and sanitary condition; and not to assign the lease without written consent of lessor. Before its execution, Hearon arranged for the purchase of toolsand inventory on the premises from Sumrall, the previous operator and lessee, for $1200. Beech, the Standard Oil agent in Biloxi, did not participate in making these arrangements. Hearon operated the station until January 1, 1963, when he terminated the lease, and sold his inventory and tools to Sumrall.
It is undisputed that Standard Oil's representatives did not control or supervise this station, but that the lessee was his own manager. Beech gave Hearon no instructions on how to operate it. Hearon determined how many days per week and the hours to remain open. He operated seven days a week, while other Standard Oil stations in the area operated only six. Hearon paid his own utility and tax bills, and hired his own employees. He paid their wages and social security taxes. His employees wore uniforms, upon which there was a patch 'Standard Oil', but these were rented by Hearon from a laundry in Gulfport. Hearon purchased gasoline from Standard Oil at wholesale prices and paid cash for it. This price was set by Standard Oil, but the retail price was fixed by Hearon, who also set his own prices for washing, greasing, fixing flats and motor oil. On occasions he sold motor oil, tires, batteries, accessories, and seat covers distributed or produced by others than Standard Oil. Profit and losses from the business were his. He received no salary or commission from Standard Oil. The filling station had in front a large 'Standard Oil' sign, and there were other Standard Oil advertisements on the gas tanks (leased from Standard Oil) and other parts of the premises. The general construction and appearance of the station were similar to other old Standard Oil stations.
The circuit court correctly gave Standard Oil a peremptory instruction. Hearon was not an agent or employee of Standard Oil under these facts. He was an independent contractor. Directly in point is Shell Petroleum Corp. v. Linham, 163 So. 839 (Miss. 1935). Shell leased to Young a filling station under terms substantially similar to the present lease. The court held that Shell was entitled to a peremptory instruction. The relationship of master and servant between Shell and Young did not exist, but Young was an independent...
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