Roth v. Shell Oil Co.

• Citation: 185 Cal.App.2d 676,8 Cal.Rptr. 514
• Court: California Court of Appeals Court of Appeals
• Decision Date: 26 October 1960
• Parties: Frances Felty ROTH and E. W. Roth, Respondents, v. SHELL OIL COMPANY, a Corporation, Appellant. Civ. 6292.

Page 514

8 Cal.Rptr. 514

185 Cal.App.2d 676

Frances Felty ROTH and E. W. Roth, Respondents, v. SHELL OIL COMPANY, a Corporation, Appellant.

Civ. 6292.

District Court of Appeal, Fourth District, California.

Oct. 26, 1960.

Rehearing Denied Nov. 22, 1960.

Hearing Denied Dec. 21, 1960.

Wilson & Wilson, San Bernardino, for appellant.

Young, Zetterberg, Henrie & McCarthy and John C. McCarthy, Pomona, for respondents.

GRIFFIN, Presiding Justice.

Plaintiffs, respondents and cross-appellants, husband and wife, brought this action against defendant, appellant and cross-respondent corporation for claimed damages for trespasses occurring on July 27 and July 29, 1957. A third cause of action for breach of contract was dismissed by plaintiffs.

Plaintiff, Mrs. Roth, formerly Frances Felty, had, for a number of years, operated a service station, a restaurant and occupied an apartment on her property in Upland, selling Shell products under a dealer sales contract with defendant Shell Oil Company, a corporation (hereinafter referred to as 'defendant' or 'Shell') which contract was dated May 16, 1950 and subject to termination on November 21 of each year upon 30 days' prior notice by either party. It was provided therein that during the continuance of the contract the dealer could use Shell's trademarks, trade names and color scheme, and that all signs and other advertising devices furnished by Shell to the dealer would remain the property of Shell and be surrendered to Shell upon demand if the dealer ceased to purchase products under the agreement or if the contract was terminated. A large Shell sign and pole were loaned to plaintiffs under a similar agreement dated January 11, 1955.

Frances Felty married E. W. Roth in 1952 and the two of them continued operation of the service station. Products were supplied to the station by one McCauley, a Shell distributor, who sold Shell products to accounts in his territory. It appears that over the years plaintiffs' relationship with Shell had been on good terms. One Boardman, a merchandising representative of Shell, who assisted the district manager in carrying out details of any decisions made by his superiors to terminate a dealer's sale contract, for a period prior to July 27, 1957, observed the Roths' station, concluded that it was no longer in operation because he found it closed on occasions during normal business hours, and saw, on one occasion, a 'closed' sign posted on it. During the week of July 22, he recommended to his superior that the account be closed out, the contract terminated and Shell's identifying signs removed. Upon this recommendation, and without checking with the Shell district office as to accounts of sale of petroleum products over this period to plaintiff, and without making any further inquiry or giving any written notice of termination of the contract, Boardman ordered an independent contractor to remove the Shell sign and pole and paint out the Shell colors upon the gasoline pumps and building, and discontinued service to the station. It appears that about July 27 the pumps, part of the building, and a sign owned by plaintiffs posted thereon, which were formerly yellow, were repainted a gray color. Mrs. Roth, while in her cafe, noticed the workmen and assumed they were just repainting her pumps yellow. Soon thereafter the workmen left. On July 29 they entered again upon the premises and the sign and pole were removed. At that time plaintiffs were present, protested and called the police. Thereafter Shell discovered there had been no termination of the contract and no actual cessation of service, and on August 2 succeeded in reaching Mrs. Roth on the telephone and informed her of the mistake they had made in their office and offered to restore the premises to their former condition. Mrs. Roth admits this conversation but refused the offer and employed an attorney to bring this action. Shell was notified that plaintiffs were considering the contract terminated 30 days after the date of the letter and ordered Shell to remove all gasoline from the service station within 24 hours, which recently had been delivered. Mrs. Roth testified that no effort was made to reopen the station because she would have been required, by city building code provisions, to make improvements which she could not afford and she feared Shell would cancel the agreement as of November 21, 1957, the date that it would be subject to termination by either party.

Mr. Roth testified that the net profits from the operation of the service station were $102 per month and that he lost four months' profit up to November 21, 1957. Defendant produced records showing average sales of 1,170 gallons of gasoline per month just prior to July 27 and accordingly stated plaintiffs' profit was about five cents per gallon, indicating a prior gross monthly income of $65 per month. Mr. Roth further testified that the value of the two pumps was $400 before they were painted, and that they had a value of one-third or $133.33 less after being painted the grayish color. Defendant claimed they could by repainted for $7 apiece. Mrs. Roth testified her restaurant closed on Mondays and they often closed the gas station on that day because they remained open on Sundays; that they often did not open the station until 10:00 a. m., but stayed open until midnight (averaging about 13 hours per day) to catch the trade after other stations had closed; that she was in her cafe or apartment on the property most of the time and would have been available to defendant if any inquiry had been made. She testified further that any money obtained from the service station belonged to her husband because he ran that part of the business; that the removal of the big illuminated Shell sign blacked out, to a great extent, the restaurant and it adversely affected her cafe business. Upon this evidence, the jury rendered a verdict in favor of plaintiffs for $540 compensatory damages and $10,000 punitive damages. On a motion for a new trial by defendant, the court ordered a new trial on the grounds of insufficiency of the evidence and excessiveness of the verdict unless plaintiffs filed a written consent to a reduction of $8,000 as to the punitive damages awarded. Plaintiffs filed such consent and a new trial was accordingly denied. Subsequently, plaintiffs filed a cross-appeal from the judgment and from the conditional order. It would appear that under the case of Conlin v. Southern Pacific R. R. Co., 40 Cal.App. 743, 747, 182 P. 71, where a motion for a new trial is granted, to go into effect unless plaintiff stipulates to reduce the verdict, in which event the motion is denied, plaintiff, by giving the stipulation and entering judgment thereon, waives any right to appeal. Filing the remittitur amounted to an acceptance and consent to such judgment. See also Fairfield v. American Photocopy Equip. Co., 158 Cal.App.2d 53, 322 P.2d 93.

Defendant appeals from the entire judgment. The first question on this appeal involves the sufficiency of the evidence to support the verdict as to compensatory damages. It might well appear that the sum of $540 allowed by the jury was made up from the claimed loss of profit at $102 per month from July 27 to November 21, when the contract could be otherwise terminated, and a loss of $133.33 in value in repainting the two pumps. Mr. Roth claimed he kept books on the gasoline sales and on other products, but he did not produce them. He stated that the gasoline...