Sample v. Gulf Ref. Co
| Decision Date | 20 April 1937 |
| Docket Number | No. 14470.,14470. |
| Court | South Carolina Supreme Court |
| Parties | SAMPLE. v. GULF REFINING CO. |
[COPYRIGHT MATERIAL OMITTED]
Appeal from Common Pleas Circuit Court of Aiken County; Hayne F. Rice, Judge.
Action by Broadus J. Sample against the Gulf Refining Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Hendersons & Salley, of Aiken, for appellant.
Williams & Busbee, of Aiken, for respondent.
The appellant, Gulf Refining Company, a large producer and wholesale distributor of gasoline, motor oils, and other petroleum products, and the respondent, Broadus J. Sample, entered into an agreement on March 13, 1934, providing for the handling by Sample of various Gulf Refining Company products at his place of business at Schultz Hill in Aiken county, S. C, during the period from March 13, 1934, until March 12, 1935, unless sooner terminated as provided by the agreement. The contract between the parties consisted of four separate documents, executed at the same time and as one transaction, one of them covering the sale by Gulf Refining Company of its products to Sample and the purchase of these products by Sample, one regulating credit sales by Sample on the presentation of courtesy cards issued by Gulf Refining Company, one providing for the installation by Gulf Refining Company of equipment for the storage and handling of the products at Sample's place of business, and one granting a license to Sample to market and resell the Gulf Refining Company products.
The instrument covering the sale by Gulf Refining Company of its products to Sample and the purchase of the products by Sample, with other stipulations, provided as follows:
It will be observed that while an estimated maximum and minimum number of gallons is stated as to all other products, there is no maximum or minimum provided for "Gulf No-Nox Motor Fuel" and "Traffic Gasoline, " thereby indicating, as we think, that the contract was written on a form in general use by the company containing a list of various trade-names or brands of products, so that the quantities could be filled in as the occasion might require, and that it was not contemplated that the products for which no quantities were provided were to be covered by the contract.
"Traffic" gasoline, one of the two brands as to which no quantities to be taken were provided by the contract, is a low-grade gasoline, usually selling from 2 to 3 cents a gallon cheaper than the standard grades, and for some time prior to July 31, 1934, Sample had been trying to induce Gulf Refining Company to deliver to him and to permit him to sell "Traffic" gasoline at his place of business, because he thought it would greatly increase his gasoline sales and improve his business generally; and although the company was disinclined to permit the sale of this low-grade gasoline in the territory in which Sample was engaged in business, and for a time refused the request, yet finally it assented, and on July 31, 1934, delivered and placed in one of the tanks at Sample's place of business 102 gallons of "Traffic" gasoline, fox which Sample paid the company in cash. Sample placed appropriate signs on the tank and about his place of business advertising his purpose to handle the "Traffic" gasoline, and by the following day he had sold 9 gallons.
On the following day, August 1, 1934, prompted by protests from other distributors and wholesalers of gasoline and motor oils, who thought that the placing of cheap low-grade gasoline in this territory would adversely affect the trade, Gulf Refining Company reversed its decision to permit Sample to sell the "Traffic" gasoline, and sent one of its employees to Sample's place of business with instructions to remove the "Traffic" gasoline and bring it back to the company's distribution station. When the company's representative reached Sample's place of business, for the purpose of withdrawing and taking away the "Traffic" gasoline, Sample was absent, and one J. M. Hightower was in charge.
The company's representative claims that Hightower voluntarily permitted him to withdraw the gasoline from the tank, furnished him the pump keys for that purpose, and helped him withdraw the gasoline; but this is denied by Hightower, who says that the company's representative procured the keys for himself and withdrew the gasoline without his assistance or consent and over his protest. In any event, however, the company's representative removed 93 gallons of the "Traffic" gasoline, all that remained in the tank, either painted out or scraped off the "Traffic" gasoline sign on the tank, and carried the gasoline back to the company's distribution station. Though denied by the company, there is also testimony to the effect that the other signs about the premises advertising the "Traffic" gasoline were required to be removed.
After the removal of the gasoline, the company offered to pay Sample for it, but he refused to accept payment, and the tender of payment has since been kept alive and brought into court. On August 2, 1934, the day following the removal of the "Traffic" gasoline, the company returned it to Sample's place of business, and offered to put it back in the tank, but this offer was also declined.
On August 4, 1934, Sample instituted this action against Gulf Refining Company, seeking both actual and punitive damages and alleging as ground for recovery the wrongful taking and carrying away of the "Traffic" gasoline, for which Sample had fully paid in cash, and the resulting injury to Sample and his business. Gulf Refining Company duly answered the complaint, and alleged by way of defense that the gasoline had been removed with the permission and authority of Sample's agent, and also pursuant to verbal agreement with Sample giving the company the right to withdraw the gasoline at any time that it deemed advisable, as well as pursuant to authority contained in the written agreement between the parties. By leave of the court a supplemental answer was subsequently served alleging by way of additional defense that on July 31, 1934, prior to the removal of the "Traffic" gasoline, Sample had sold his entire stock in trade, including the "Traffic" gasoline in question, to C. F. Hightower, and that Sample, therefore, had no cause of action.
The trial of the case resulted in a verdict in favor of Sample for $217.07 actual damages and $2,782.93 punitive damages. A motion for a new trial having been made and refused, judgment was entered in accordance with the verdict of the jury, and this appeal ensued.
As grounds for reversal of the judgment of the circuit court, the appellant alleges error in the admission and exclusion of testimony, in instructions given to the jury, in the refusal to give instructions requested by appellant, and in the refusal to grant a new trial, or to reduce the damages awarded, both actual and punitive.
We think there was no error, as' contended by appellant, in admitting the testimony of W. Mack Croft to the effect that business at his filling station increased after he commenced to sell "Acto, " a cheap grade of gasoline distributed by another oil company. Appellant insists that the testimony was erroneously admitted, because the conditions surrounding Croft's filling station and Sample's station were not shown to be the same, and the gasoline was produced by a different company. The testimony shows that the two filling stations are located about one mile apart on the same road, that the station of Sample is the nearest station in the state to the station of Croft, and that "Acto" and "Traffic" gasoline are both third-grade gasolines. This certainly indicates at least some degree of similarity of conditions in substantial respects, and while the weight of the testimony possibly might increase correspond-ingly with the appearance of greater similarity of conditions, yet this is something that relates to the weight of the testimony rather than to its competency.
We likewise think that there was no prejudicial error in permitting respondent to testify as to a conversation with appellant's employee, Ed Howard, on the afternoon of August 1, after the gasoline had been removed from respondent's place of business at Schultz Hill. This testimony is said to have been erroneously admitted for the reason that it was not a part of the res gestae and not within the scope of Howard's employment. If it be conceded that the testimony was erroneously admitted when given, the error was made of no consequence by the fact that appellant later called Howard as a Witness,...
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