Phillips Petroleum Co. v. Miller

• Decision Date: 06 June 1936
• Docket Number: No. 10409.,10409.
• Citation: 84 F.2d 148
• Parties: PHILLIPS PETROLEUM CO. v. MILLER.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F.2d 148 (1936)

PHILLIPS PETROLEUM CO. v. MILLER.

No. 10409.

Circuit Court of Appeals, Eighth Circuit.

June 6, 1936.

Walter L. Barnes, of Des Moines, Iowa, and Edward S. Stringer, of St. Paul, Minn. (O'Brien, Horn & Stringer, of St. Paul, Minn., and R. H. Hudson, of Bartlesville, Okl., on the brief), for appellant.

Roy J. Mohan, of St. Paul, Minn. (Arthur E. Nelson and Irving Levy, both of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action brought by appellee, Howard Miller, against the appellant, Phillips Petroleum Company, to recover damages for personal injuries alleged to have been suffered by him in falling through an open manhole in the washroom at a gasoline service station operated by appellant in St. Paul, Minn. From a verdict and judgment in favor of appellee, appellant has taken this appeal. We shall refer to the parties as they appeared below.

Plaintiff was employed as a bakery truck driver and salesman for Tassies' Bakery of St. Paul, and on the morning of April 20, 1934, drove his truck into the station of defendant, for the purpose of getting gas and oil. After supplying plaintiff's truck with gas, the station attendant advised him that he needed about two quarts of oil. Plaintiff decided, however, that, instead of adding the oil, he would have it changed, so he drove on the pit where the oil was changed, after which he walked into the washroom at the station, and fell into the manhole, then open and unguarded, on the floor of the washroom.

From the entrance of the door into the washroom to the manhole was about two and a half to three feet. Plaintiff had been in this service station on an average of twice a week for six months prior to this accident, and had been in the washroom a number of times prior to the accident. He says, "Almost every time I went into the station." There was a window in the washroom opposite the door entering it. The accident happened at about 10 o'clock in the morning. Plaintiff, in his testimony, said: "I don't remember which direction I was looking as I walked into this washroom. I certainly was not looking at the hole, or I would not have stepped into it. I said I don't remember which direction I was looking. I was not talking to the attendant while I was walking into it, I don't think." He also testified: "I don't remember as I walked into that washroom which way I was looking." He testified that he did not see the hole.

"Q. But you can not remember where you were looking? A. As I remember it, I was — I can't remember. This was back, but it seems to me that I was reaching through for the door because as the door is setting you have almost got to close the door to get to the toilet.

"Q. The door swings open into the washroom and after you get in you have to close the door? A. You have got to step kind of around it, as I remember it."

Plaintiff was uncertain whether the door was open or closed, but testified that it seemed to him that it was "just about half open and half closed." Plaintiff did not know there was a manhole in the washroom. From the entrance to the washroom to the opposite wall was about seven feet.

Under his contract of employment with the Tassies' Bakery, plaintiff furnished his own truck and the gas and oil consumed in operating it and was paid for his services on a commission basis.

The pertinent parts of Mason's Minnesota Statutes, 1927, are as follows:

"4291. Liability of party other than employer — Procedure — (1) Where an injury or death for which compensation is payable under part 2 of this act is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of part 2 of this act, the employe, in case of injury, or his dependents in case of death may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under part 2 of this act, but not against both. * * *

"The provisions of Subdivision 1 of this section shall apply only where the employer liable for compensation under part 2 of this act and the other party or parties legally liable for damages were engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof, and not otherwise."

Both Tassies' Bakery, plaintiff's employer, and defendant were insured and were operating under part 2 of the Minnesota Workmen's Compensation Act (Mason's Minn.St.1927, § 4268 et seq., as amended), and prior to the commencement of this action plaintiff had received and accepted from his employer or its insurer workmen's compensation.

Defendant on this appeal makes the following contentions: (1) Plaintiff, having elected to receive and having accepted workmen's compensation, the action against the defendant should have been dismissed; (2) plaintiff was guilty of contributory negligence as a matter of law; and (3) the court erred in instructing the jury on the issue of contributory negligence and erroneously refused to give instructions requested by defendant on that issue.

1. Is the action barred by the provisions of the Minnesota Compensation Act above quoted? In considering this question, we are bound by the construction which the Supreme Court of Minnesota has placed upon the Minnesota statutes. Liggett & Myers Tobacco Co. v. DeParcq (C.C.A.8) 66 F.(2d) 678; E. C. Warner Co. v. W. B. Foshay Co. (C. C.A.8) 57 F.(2d) 656. The Supreme Court of Minnesota has construed the effect of the act in a number of cases and under various circumstances and conditions, and counsel for defendant earnestly contend that under this act, as construed by the Supreme Court, plaintiff here cannot recover because he has elected to receive workmen's compensation from his employer, which, it is contended, at the time plaintiff received his injuries was engaged with the defendant in the due course of business, in furtherance of a common enterprise, or the accomplishment of the same or related purposes in operation on the premises where plaintiff's injury was received. With equal earnestness and vigor, it is urged by counsel for plaintiff that the employer of plaintiff and the defendant were not engaged in the due course of business, either in furtherance of a common enterprise or the accomplishment of the same or related purposes at the time plaintiff received his injuries. It is therefore necessary to make some analysis of these decisions, particularly those rendered after the 1923 amendment of the act. The Supreme Court of Minnesota has not attempted to lay down any general rule applicable to all cases, but has in effect held that each case must be determined upon its own facts.

It seems clear that defendant and Tassies' Bakery, plaintiff's employer, were not engaged in a "common enterprise." Were they engaged in "the accomplishment of the same or related purposes in operation on the premises where the injury was received, at the time thereof?" We shall first refer to those cases decided subsequent to the amendment of 1923, in which the Supreme Court of Minnesota has held that the employer and the third person whose alleged negligence caused the injury were engaged in a common enterprise, or were working toward the accomplishment of the same or related purposes on the premises.

In Rasmussen v. George Benz & Sons, 168 Minn. 319, 210 N.W. 75, 77, 212 N.W. 20, the plaintiff was employed by an ice company. Defendant held a lease of ground, on which it had erected a building, part of which was a hotel leased to and occupied by a hotel company. Other tenants occupied other portions of the building. Defendant maintained a freight elevator and stairway adjacent thereto in the building. Plaintiff and a fellow workman delivered ice daily to the hotel company. On the day in question, he took a cake of ice on the elevator, and defendant's employee in charge thereof lowered it to the basement floor. Plaintiff then took the ice to the ice box while the elevator ascended to the first floor landing. Defendant's employee negligently caused a piece of tile to fall down the stairway on which plaintiff was ascending, injuring him. The Supreme Court held that the ice company and the defendant were carrying on services which were used in the accomplishment of related purposes. In the course of the opinion, the court said:

"To the extent of taking the ice from the first floor to the basement, defendant, with its elevator and the employee in charge thereof, was engaged in part in the due course of business for the accomplishment of a part of the business of the ice company. It was aiding in delivering the ice. Its purpose was thus to aid the ice company in accomplishing the delivery of the ice. What may be said as to the maintenance of the elevator applies equally to the maintenance of the stairway which Rasmussen used daily and on which he was traveling when injured. This was a means of return to or exit which was just as essential as the means of ingress. May it not be also said that the purpose of the business in which defendant was thus engaged on the premises, namely, the maintenance of the elevator and stairway for the purposes mentioned, was `related' to the said business of the ice company, namely, the delivery of the ice which was in operation on the premises? Business is related when the parties are mutually or reciprocally interested in a commercial way; or where the business of one has a necessary relation toward or in conjunction with the other. The service of the one, the defendant, is complementary to the service of the other, the ice company. The ice company probably has but one purpose. The defendant may have many. It participates in the purposes of many. It has a fundamental reason of its own for...