Sherman v. Texas Co.
Decision Date | 30 March 1960 |
Citation | 165 N.E.2d 916,340 Mass. 606 |
Parties | Arthur F. SHERMAN v. TEXAS COMPANY et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jack J. Moss, Woburn, for plaintiff.
Peter D. Cole, Boston, for defendant The Texas Co.
Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.
The plaintiff, according to his bill of exceptions, on August 23, 1953, drove his automobile into a service station at Main and School streets, North Woburn, for fan belt repair and to buy gasoline. Obeying instructions of the attendant, the plaintiff drove the automobile onto a hydraulic lift, and, after the hood of the automobile had been raised and a short circuit discovered, he stood on the lift 'looking into the engine to observe what may be the trouble.' The attendant then left to supply gasoline to a customer and upon his return he pulled a switch which caused the lift to rise and the plaintiff to fall and be injured.
The plaintiff brought an action against The Texas Company (the defendant) and against the attendant, his employer (the lessee of the station under a lease from The Texas Company), and Stanley Gillespie who was 'supervising * * * the gasoline station' for the lessee while the latter 'was in the military service.' The action was discontinued as to the individual defendants other than Gillespie.
The declaration alleged that the 'defendants * * * were jointly in control of * * * [the premises] and that * * * the plaintiff was * * * injured by the negligence of the servants, agents and employees of the defendants acting jointly in maintaining an automobile lift.' The plaintiff's exceptions are to the action of the judge in directing a verdict for the defendants, on a motion which referred to the evidence, the law and the pleadings, and to the exclusion of the plaintiff's proffered testimony that he assumed from the appearance of this station that it was operated by The Texas Company.
The plaintiff contends that the evidence warranted the conclusion that the defendant had held itself out as the proprietor of the service station and that he may recover under Barron v. McLellan Stores Co., 310 Mass. 778, 782-783, 39 N.E.2d 953. See also Timmins v. F. N. Joslin Co., 303 Mass. 540, 22 N.E.2d 76, 123 A.L.R. 591. We need not decide the applicability of the principles stated in those concessionaire cases to this lessor-lessee case, for we think the necessary representation of proprietorship was lacking.
There was testimony that the defendant has a distinguishing color and sign scheme for gasoline stations either owned or operated so that identification on all such stations is standard. This station had a 'characteristic * * * banjo pole' displaying a round disc with the standard Texaco identification, 'a red star with green and the letters 'Texaco." The gasoline pumps were of a standard type and color scheme, which is used for both owned and leased stations. The station had the name Texaco on its signs and the characteristic colors, white with green trim, on the building. On stations 'operated solely by * * * [the defendant]' there is a sign over the door in six inch block letters reading 'The Texas Company.' There was no such sign over the door of...
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