Sinclair Refining Co. v. Butler, s. 64-487

• Decision Date: 26 February 1965
• Docket Number: 64-488,Nos. 64-487,s. 64-487
• Citation: 172 So.2d 499
• Parties: SINCLAIR REFINING CO., a corporation, Appellant, v. Margaret Scott BUTLER, as Administratrix of the estate of Warren E . Butler, Deceased, and J. P. Canington, Appellees.
• Court: Florida District Court of Appeals

Page 499

172 So.2d 499

SINCLAIR REFINING CO., a corporation, Appellant, v. Margaret Scott BUTLER, as Administratrix of the estate of Warren E . Butler, Deceased, and J. P. Canington, Appellees.

Nos. 64-487, 64-488.

District Court of Appeal of Florida, Third District.

Feb. 26, 1965.

Rehearing Denied March 23, 1965.

Scott, McCarthy, Preston & Steel and Dwight Sullivan, Miami, for appellant.

Green & Hastings and Irma Robbins Feder, Wicker, Smith, Blomqvist, Hinckley & Davant, Miami, for appellees.

Before BARKDULL, C. J., and CARROLL and HORTON, JJ.

PER CURIAM.

These two cases were consolidated for determination as the final judgments here under review were entered in the same cause of action .

It appears from the record on appeal that one Warren E. Butler took his automobile to a service station owned by the appellee, Canington, [which was leased to the appellant, Sinclair Refining Company, and in turn subleased to Canington who, over a period of years, had permitted other persons to operate the station with the knowledge and apparent consent of Sinclair]. At the time of the incident in question, the defendants Lesley and Harten were the actual operators of the service station. The original arrangements between Canington and Sinclair Refining Co. had commenced in the early 1930's. There was, in fact, a complete offset in the rental provision between the lease from Canington to Sinclair and the return sub-lease (or permit) from Sinclair to Canington. There were also agreements relative to the rental of equipment. These agreements contained certain indemnification obligations which, by their terms, placed the responsibility for maintaining the equipment upon Canington. The evidence indicated that Canington had ceased to operate the service station personally in the early 1940's, and there had been successive operators from that time until the defendants Lesley and Harten ultimately came in control of the station as its operators. It was apparent that the appellant, Sinclair Refining Co., and the appellee, Canington, periodically re-executed their basic agreements as a matter of form, without any negotiations of the terms thereof.

On the date in question, the deceased took his automobile to the service station to have certain repair work done thereon. In connection therewith, it was driven onto a grease rack and raised in the air for the purpose of permitting work underneath. It is clear from the evidence that the automatic locks [to prevent the car from rolling off the rack] did not function properly and had not functioned properly for some time prior to the accident. After the car was in the air and the operator had begun to service it, the car rolled off, crushing the deceased [who was standing behind the rack] to the ground, whereupon he suffered severe injuries which resulted in his being pronounced dead within several hours thereafter. The evidence indicated that, notwithstanding any covenants to the contrary, it had been the practice for many years for the operators of the station to call agents of Sinclair whenever they needed repairs on the equipment [which had been installed on the premises by Sinclair Refining Co.]. In fact, Sinclair had installed the grease rack and the evidence was susceptible of the views that as recently as two weeks prior to the accident Sinclair had been advised that the rack was in need of repair.

The appellee, Margaret Scott Butler [pursuant to the survival statute, § 45.11, Fla.Stat., F.S.A.], instituted the action in the trial court against J. P. Canington, as the owner of the premises; Ralph E. Lesley and Hollis Edward Harten, as the operators in possession; and Sinclair Refining Co., as the supplier of the equipment. Default judgments as to liability were taken against the defendants Lesley and Harten. The defendant Canington filed on answer generally denying liability and a cross-claim against the defendant Sinclair Refining Co., urging a common law indemnity in the event it was liable. Sinclair filed an answer of general denial of liability and a cross-claim against Canington, seeking recovery under the indemnification agreements contained in the basic lease, the sublease permit and the equipment rental agreement. Canington responded to this cross-claim with several defenses, among which was abandonment of the written agreements. Both Sinclair and Canington urged that the deceased was guilty of contributory negligence.

Upon the issues being framed by the pleadings, the matter was tried before a jury which returned a verdict in favor of the plaintiff and against the defendants Lesley and Harten and the defendant Sinclair Refining Co. On the plaintiff's main case, the verdict specifically exonerated the defendant Canington. It also adjudicated no liability on Canington by virtue of the cross-claims. Thereafter, a final judgment was rendered for the plaintiff in accordance with the jury's verdict, and for the defendant Canington on the cross-claim of Sinclair Refining Co.

Subsequent to these judgments, Sinclair instituted an appeal from the verdict and judgment in favor of...