Shaver v. Bell

• Decision Date: 21 December 1964
• Docket Number: No. 7501,7501
• Citation: 1964 NMSC 255,397 P.2d 723,74 N.M. 700
• Parties: Clinton W. SHAVER, Sr., Plaintiff-Appellant, v. Ray BELL, d/b/a Ray Bell Oil Company, and Cosden Petroleum Corporation, a corporation, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 723

397 P.2d 723

74 N.M. 700

Clinton W. SHAVER, Sr., Plaintiff-Appellant, v. Ray BELL, d/b/a Ray Bell Oil Company, and Cosden Petroleum

Corporation, a corporation, Defendants-Appellees.

No. 7501.

Supreme Court of New Mexico.

Dec. 21, 1964.

M. Rosenberg, Dick A. Blenden, Harold N. Olive, Carlsbad, for appellant.

Atwood & Malone, Charles F. Malone, Roswell, for appellee Ray D. Bell.

McCormick, Lusk, Paine & Feezer, Carlsbad, for Cosden Petroleum Corp.

MOISE, Justice.

Plaintiff-appellant brought suit against defendant-appellees, Ray Bell, hereinafter referred to as 'Bell'; Cosden Petroleum Corporation, hereinafter referred to as 'Cosden' and Olin G. Bass, hereinafter referred to as 'Bass,' to recover for injuries suffered when plaintiff slipped and fell while in a gasoline filling station purchasing gasoline for his automobile. Bass was dismissed from the case on motion of plaintiff. Thereafter summary judgment in favor of Cosden and Bell was entered. This appeal followed.

The depositions and affidavits on file in the case disclose that appellee Bell leased the premises on which the service station is located from the Tracy Estate in 1959. He borrowed $8500.00 from appellee Cosden to build the station which sum was repayable at the rate of $164.33 per month. A written lease on the station was entered into whereby Bell leased to Cosden and by oral arrangement the station was then leased back to Bell. So far as can be determined from the proof presented, Cosden placed no restraints on Bell as sub-lessee and had no control of any sort over his use of the premises.

Bell, in turn, placed Olin G. Bass and Bill Hendrix in possession of the property to operate the station. The arrangement with Hendrix and Bass provided that Bell would provide certain specified equipment and, in addition, that he would furnish all trading stamps and advertising and pay all utilities. Hendrix and Bass agreed to purchase all products sold by Bell so long as prices were competitive, paying Bell and accounting daily for all products sold. It was provided that the station should be open for business from 6:00 a. m. to 9:00 p. m., seven days each week. Bell and Bass had the right to terminate their relationship on 24 hours notice.

Plaintiff presents three points relied on for reversal. Broadly stated, they raise the question of the propriety of summary judgment in behalf of each remaining defendant because of the claimed presence of issues of fact concerning the relationship of the defendants, one to the other, and to Bass who is no longer a party. Also, they assert defendants are liable under the doctrine of Respondeat Superior.

The answer briefs of both defendants assert an absence of material issues of fact and, in addition, argue that the undisputed facts in the record will not support a recovery by plaintiff from either of them. We first consider whether under the facts a recovery for injuries suffered as a result of the plaintiff's slipping and falling can be supported by our decisions. If a negative answer is reached as to both defendants, the other issues need not be considered.

The rules applicable in summary judgment proceedings have been discussed so often by us that their repetition would contribute nothing. We are satisfied merely to direct attention to Hewitt-Robins, Inc., Robins Conveyors Division v. Lea County Sand & Gravel, Inc., 70 N.M. 144, 371 P.2d 795; Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, where the rules are discussed at some length, and numerous other cases cited therein.

Plaintiff testified in his deposition that he drove into the service station about 5:30 p. m. on April 20, 1962. He testified that it was dusk, but that the station was well-lighted. Upon plaintiff's request that the gas tank be filled, the attendant inserted a hose which had an 'automatic service' attachment. Plaintiff then got out of his car and started back to tell the attendant to be sure the tank was full. When he got to a point even with the left rear fender of his car, he slipped and fell in what he claims was a puddle of oil. Plaintiff testified that he did not see the puddle before falling in it, but that upon later inspection it was found to be from twelve to eighteen inches long and from twenty-four to thirty inches wide. It was brownish in color--the color of oil. He stated that the attendant immediately after the fall said, 'I have been threatening to clean that up. I guess I will clean it up now.'

During the last several years we have been called upon to review a number of slip and fall cases. Of these, Carter v. Davis, 74 N.M. 443, 394 P.2d 594; Crenshaw v. Firestone Tire & Rubber Co., 72 N.M. 84, 380 P.2d 828, and Hallett v. Furr's, Inc., 71 N.M. 377, 378 P.2d 613, all involved slipping and falling on ice or snow, and in all of them summary judgments for defendant were affirmed on the theory that 'the store owner has no greater duty to prevent injury than the invitee has to protect himself or herself, since the dangers involved are universally known and are equally apparent to each party.' Hallett v. Furr's, Inc. supra. The spot of oil in this case was not 'universally known' and plaintiff stated that he did not see, or know of the existence of, the puddle of oil prior to stepping in it. Neither can we say as a matter of law that he saw or should have seen it.

Jimenez v. Shop Rite Foods, Inc., 72 N.M. 184, 382 P.2d 181, and Lewis v. Barber's Super Markets, Inc., 72 N.M. 402, 384 P.2d 470, are cases where plaintiffs fell in the produce department of a grocery store. In both of them judgments for defendants were upheld on the ground that reasonable minds could not differ that the facts did not establish negligence of the defendant as a proximate cause of the injury. Barrans v. Hogan, 62 N.M. 79, 304 P.2d 880, 61 A.L.R.2d 1, is an earlier case to the same effect.

Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712, and Mahoney v. J. C. Penney Co., 71 N.M. 244, 377 P.2d 663, on the other hand, are cases upholding judgments in favor of persons who had been injured when they slipped and fell on defendant's premises. In Lewis v. Barber's Super Markets, supra, we distinguished the two lines of cases in the following manner:

'The distinction we note between the two lines of cases referred to above is simply that in one the proof established as a fact or permitted a reasonable inference that the 'messy condition * * * was a continuing occurrence--in effect a pattern of conduct * * *' whereas, in the other, no such proof was present or inference permissible. Plaintiff asserts with conviction that she has established a continuing 'messy condition' which clearly gives substantial support to the jury's verdict.'

This is in addition to any question of contributory negligence or assumption of risk which might have been present in any of the cases.

Whereas in Lewis, supra, we concluded that there was no showing sufficient to establish liability of defendant, under the facts here it seems equally apparent that an issue is present concerning the condition which existed with reference to the oil on the pavement, and the knowledge of its presence and failure to do anything about it. Having arrived at this conclusion, we must consider who may be responsible for the injury.

The proof before the court showed that Bell was an independent distributor who purchased his gasoline and petroleum products from Cosden. Only Cosden gasoline was sold at the station. A seventy-two inch pedestal sign with the word 'Cosden' was located on the premises. Another sign on the building said 'Cosray Oil Company,' being a name used by Bell in one of his businesses.

The depositions and affidavits disclose the following additional facts concerning Cosden's position. Their products were sold exclusively on the premises. Their credit card facilities were available with the understanding that they stood any loss thereon. Cosden asserted no rights in connection with the station except that in the event of default in rental payments, Cosden could retake possession. They never had any direct contact with either Bass or Hendrix. Plaintiff's assertion that there is a conflict between the lease and the answers to interrogatories so as to raise an issue of fact is noted. We find no merit therein.

It is, of course, Cosden's position that it had no right to control its sub-lessee, Bell, in any manner whatsoever and that Cosden was not negligent because it had nothing to do with operation of the station and, further, that plaintiff was contributorily negligent. Bell also asserts a lack of control and an absence of negligence on his part, as well as the contributory negligence of the plaintiff.

Cases which have been found on the subject of control by an oil company over the operation of service stations generally involve agreements between the oil company and the operator directly. Under our facts, Bell is an intermediate party. We must, therefore, analyze the relationship, if any, existing between Cosden and Bell, Cosden and Bass, and between Bell and Bass.

Whether a station operator is an employee of an oil company or an independent contractor depends on the facts of each case, the principal consideration being the control, or right to control, of the operation of the station. Where the employee is subject only to the control or direction of the employer as to the result to be procured, he is an independent contractor; if he is subject to the control of the employer as to the means to be used in reaching that result, he is an employee. See Latta v. Harvey, 67 N.M. 72, 352 P.2d 649; Campbell v. Smith, 68 N.M. 373, 362 P.2d 523; and Shipman v. Macco Corporation, 74 N.M. 174, 392 P.2d 9, where we last discussed this problem. Miller v. Sinclair Refining Co., 268 F.2d 114 (5th Cir.1959) discusses the relationship of an oil company to an owner-operator of a filling station under a sub-lease from the company.

The plaintiff agrees that the question involved is...