Louisiana Oil Corporation v. Davis, 31542

CourtUnited States State Supreme Court of Mississippi
Citation158 So. 792,172 Miss. 126
Decision Date28 January 1935
Docket Number31542

Division B


As respects liability of filling station owner for injuries by customer who purchased kerosene from station lessee, and tripped over concrete foundation near station building customer held "invitee" and not "licensee" because kerosene was sold through lessee's grocery store in back of station where kerosene was in same category as other petroleum products and was sold by lessee as owner's agent.


In action against filling station owner for injuries sustained by customer who purchased kerosene from station lessee who operated grocery store in back of station, whether concrete foundation in connection with want of sufficient, lights would constitute negligence would be for jury.


In action against filling station owner for injuries sustained by customer who tripped at night over concrete foundation near station building, instructing that maintenance of foundation was negligence per se, regardless of whether way was lighted held harmful error.


Variance between cause of action stated and that sought to be proven can only be availed of by objection to testimony, otherwise it will not be considered on appeal (Code 1930, section 568)


APPEAL from the circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Action by Mrs. Susie Davis against the Louisiana Oil Corporation. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Reversed and remanded.

Watkins & Eager, of Jackson, for appellant.

The plaintiff in her declaration bases her suit entirely upon the alleged negligent act of the defendant, Louisiana Oil Corporation, in removing the tank from the concrete base and leaving the concrete base exposed.

As to the defendant, Louisiana Oil Corporation, the appellee, at the time of the alleged injury, was a mere licensee.

Keeran v. Spurgeon Mercantile Co., 191 N.W. 99, 27 A.L.R. 579; Branan v. Wimsatt, 298 F. 833, 44 S.Ct. 639, 68 L.Ed. --; Peebles et al. v. Exchange Building Co., 15 F.2d 335, 6 C. C. A. 1926; American Railway Express Company v. Gilbreath, 48 F.2d 809, 6 C. C. A. 1931; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128; Severy v. Nickerson, 120 Mass. 306; Evansville & Terre Haute Railroad Company v. Griffin, 100 Ind. 221, 50 Am. Rep. 783.

Mrs. Davis at most was either on the premises of this appellant for her own convenience, or upon the invitation of the grocer who operated a business in the adjoining establishment.

The only negligence proven is that of W. M. Carrier in his capacity as a grocer.

39 C. J. 1295; Burke v. Shaw, 59 Miss. 443; Barmore v. Railway Co., 85 Miss. 426.

The existence of the concrete base in the filling station was not negligence per se.

Albachten v. Golden Rule, 160 N.W. 1012; Stimpson v. Pipe Line Co., 120 Tex. 232, 36 S.W. 473; Wilson v. Werry, 137 S.W. 390; Flatley v. Acme Garage, 194 N.W. 180; Loney v. Laramie Auto Co., 255 P. 350; Western Union Tel. Co. v. Balkely, 140 So. 336, 162 Miss. 854; Ryerson v. Bathgate, 57 L.R.A. 307; Hertz v. Advertiser Co., 78 So. 794, L.R.A. 1918F 137; Woodland Gin Co. v. J. C. Moore, 60 So. 574, 103 Miss. 447.

Hall & Hall, of Columbia, and Grayson B. Keaton, of Picayune, for appellee.

Under the facts, appellee was an invitee on the premises, for she was there on business with appellant. As to an invitee the occupant owes the duty of keeping the premises in a reasonably safe condition.

20 R. C. L. 69; S. H. Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858; J. B. Christopher Co. v. Russell, 58 So. 45, Ann. Cas. 1913C, 564, 568, 570; Owens v. Y. & M. V. R. R. Co., 94 Miss. 378, 47 So. 518; Lepnick v. Gaddis, 72 Miss. 200; Allen v. Y. & M. V. R. R. Co., 111 Miss. 267, 71 So. 388; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; Theodore v. J. G. McCrory Co., 137 So. 352; Huber v. American Drug Stores, 140 So. 120; Grigsby v. Morgan & Lindsey, 148 So. 506; Hill Grocery Co. v. Hameker, 89 So. 850; F. W. Woolworth Co. v. Erickson, 127 So. 534.

Under the facts in evidence, W. M. Carrier was acting as agent for appellant and not in any private or individual capacity as a grocer.

The fact that appellant was not owner of the premises but only a lessee, does not relieve it of the duty owing to an invitee to keep the premises in safe condition.

20 R. C. L. 73; 16 R. C. L. 1063; Grigsby v. Morgan & Lindsey, 148 So. 506; Hill Grocery Co. v. Hameker, 89 So. 850; King v. Cooney-Eckstein Co., 63 So. 659.

Under the evidence here, the leaving of the concrete block in appellee's passageway constituted negligence.

Hill Grocery Co. v. Hameker, 89 So. 850.

The instruction peremptorily charging that appellee was guilty of contributory negligence as a matter of law was correctly refused because this was a question for the jury.

Sec. 512, Miss. Code 1930; W. & G. R. R. Co. v. McDade, 34 L.Ed. 235; R. R. v. Converse, 35 L.Ed. 213; R. R. v. Tobriner, 37 L.Ed. 284; N. & W. Ry. v. Earnest, 57 L.Ed. 1096; Sec. 511, Miss. Code of 1930; Pascagoula v. Kirkwood, 86 Miss. 630; Birdsong v. Mendenhall, 97 Miss. 544; Natchez v. Lewis, 90 Miss. 310; Jordan v. Lexington, 97 So. 758.

Liability of the occupant extends to all parts of the premises used to gain access thereto or constituting a passageway to and from the business portion of the building.

Schmidt v. Bauer, 5 L.R.A. 580; Rachmel v. Clark, 62 L.R.A. 959.

Objects similar to this concrete base have repeatedly, been held to constitute negligence.

Western Union Tel. Co. v. Blakely, 140 So. 336; Woolworth v. Erickson, 127 So. 534; Theodore v. McCrory, 137 So. 352; Huber v. American Drug Co., 140 So. 120; Grigsby v. Morgan & Lindsey, 148 So. 506; Hill Grocery Co. v. Hameker, 89 So. 850; Standard Oil Co. v. Franks, 140 So. 798; Owens v. Y. & M. V. R. R. Co., 94 Miss. 378; A. & V. Ry. Co. v. Groome, 97 Miss. 201; Public Serv. Co. v. Watts, 150 So. 192.

Argued orally by W. H. Watkins, Jr., for appellant, and by Lee D. Hall, for appellee.


Anderson, J.

Appellee brought this action in the circuit court of Pearl River county against appellant to recover damages for an injury she received by falling over a concrete block about thirty inches square and five inches high, alleged to have been negligently maintained by appellant at one of its filling stations in the town of Picayune in said county, and recovered a judgment in the sum of three thousand dollars. From that judgment, appellant prosecutes this appeal.

There is little, if any, conflict in the material evidence on the issue of liability.

Appellant held under lease what is commonly known as an automobile filling station in the town of Picayune; the station was constructed and maintained in the form of many such stations, in them there is sold and distributed gasoline, oils, and other petroleum products used in the operation of automobiles. In addition, sometimes automobile accessories, including tires, are sold. The filling station in question was located at the intersection of Canal and Martin streets in the town of Picayune. Canal street is on the north and Martin street on the east. The filling station was in the triangle made by the intersection of these streets. The building consisted of a filling station proper with the necessary underground tanks and two gasoline pumps, and, in addition, at the rear of this was a retail grocery store. The front of the filling station was a right angle triangle formed by the intersection of the sidewalks of two streets; the base of the triangle was the wall of the filling station; this was covered by a shed which was part of the main building; the sides of the triangle were something like thirty or forty feet long. There were two doors entering the filling station proper from the triangle, and one entering the grocery store, and there was a door between the grocery store and the filling station. This right angle triangle was paved with concrete; it was of sufficient depth and width to hold at least two automobiles abreast and still have ample depth left for customers to go back and forth and move around the station. Appellant employed one Carrier to conduct the station. The contract between them was in writing, and it provided that appellant would furnish Carrier gasoline and other petroleum products, including kerosene to be used in the operation of the filling station, the title to which was reserved in appellant until sold by Carrier. Carrier was charged with the invoices. Appellant fixed the prices of the products and reserved the right to approve the credit sales.

Carrier operated the retail grocery store in the rear of the filling station along with the other business. His wife helped him carry on the business. Besides groceries, he sold in his store kerosene furnished by appellant. The container holding the kerosene was in the filling station, not in the grocery store.

Some time before appellee's injury, appellant maintained three gasoline pumps in the triangle for supplying his customers two for high grade gasoline and one for lower grade. One of these pumps was near one of the doors entering the station building, it had been placed on a concrete foundation about thirty inches square and five inches high, which foundation was made into the concrete pavement of the triangular front. Having no use for two pumps to dispense high grade gasoline, some months before appellee's injury appellant had the one located near the door removed, leaving the concrete base. This concrete base was either against the wall of the station building or so near that it appeared to be against it. There were photographs in the record showing the...

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