Standard Oil Co. v. Franks

• Decision Date: 02 October 1933
• Docket Number: 30707
• Citation: 167 Miss. 282,149 So. 798
• Court: Mississippi Supreme Court
• Parties: STANDARD OIL CO. v. FRANKS

149 So. 798

167 Miss. 282

STANDARD OIL CO. v. FRANKS

No. 30707

Supreme Court of Mississippi

October 2, 1933

Division B

Suggestion Of Error Overruled October 30, 1933.

APPEAL from the circuit court of Prentiss county HON. THOS. H JOHNSON, Judge.

Action by W. M. Franks against the Standard Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Winchester & Bearman, of Memphis, Tenn., and Creekmore & Creekmore and E. C. Sharp, all of Jackson, for appellant.

The proof fails to show that the appellee was an employee of the appellant, Standard Oil Company of Kentucky, but, on the contrary, shows that J. M. Franks was an independent contractor, and the appellee was employed by him.

W. R. Roger et al. v. Mrs. Wallace Lewis, reported in 144 So. 373.

The proof shows that J. M. Franks operated on the leased premises in addition to the filling station, a general mercantile business, from which he operated a number of peddling trucks and wagons, and that W. M. Franks, appellee herein, was engaged to operate a truck for the sale of produce for the account of J. M. Franks.

Louis Werner Sawmill Company v. Northcutt et al., 161 Miss. 441, 134 So. 156; 18 R. C. L., p. 490; 39 C. J., p. 35; 39 C. J., page 1315, section 1517; Aldrich v. Tyler Grocery Company, 206 Ala. 138, 89 So. 289, 17 A. L. R. 617; Isaacs v. Prince et al., 133 Miss. 195; Hutchinson-Moore Lumber Company v. Pittman, 122 So. 191, 154 Miss. 1; Texas Company v. Brice, 26 F.2d 164; Gulf Refining Company v. Wilkinson (Fla.), 114 So. 503; Union Casualty & Surety Company v. Gray (C. C. A. 3), 114 F. 422; Crescent Baking Company v. Denton, 147 Miss. 639, 112 So. 21; Bear Creek Mill Company v. Fountain, 130 Miss. 436.

The danger, if any, in this case was obvious and known to the appellee, and therefore there is no liability on the Standard Oil Company.

Wilbourn v. Charleston Cooperage Company, 127 Miss. 290, 20 So. 9; 20 R. C. L., pp. 55 to 57, inclusive, sections 51 and 52; Woodland Gin Company v. J. C. Moore, 103 Miss. 447, 60 So. 574; Pietri v. L. & N. R. R. Co., 152 Miss. 185.

"No precautions are necessary where the danger is obvious and unconcealed, or known to the person injured."

Hunnewell v. Haskell, 174 Mass. 557, 55 N.E. 320; Hart v. Grennell, 122 N.Y. 371, 25 N.E. 354; Accousi v. Furniture Co. (Tex.), 87 S.W. 861; Sesler v. Rolfe Coal Co., 51 W.Va. 318, 41. S.E. 216; 45 C. J., p. 869; 20 R. C. L., p. 57; Caniff v. Navigation Co., 66 Mich. 638, 33 N.W. 744; Hoyt v. Woodbury, 200 Mass. 343, 86 N.E. 772; 20 R. C. L., p. 15, sec. 10; George v. Los Angeles R. R. Co., 126 Cal. 357, 46 L. R. A. 829; Mesher v. Osborne, 75 Wash. 439, 48 L. R. A. (N. S.) 917; Bennett v. L. & N. R. R. Co., 102 U.S. 577, 26 L.Ed. 235; Newport News R. R. Co. v. Clarke, 6 L. R. A. (N. S.) 905; Bridges v. Jackson Ry. Co., 86 Miss. 584.

Testimony that Standard Oil Company repaired pipe after the accident was inadmissible.

45 C. J., p. 1232, sec. 791; Railroad Company v. Clem, 123 Ind. 15, 23 N.E. 965.

Jas. A. Cunningham, of Booneville, for appellee.

The question of the master's negligence in failing to exercise ordinary care to provide plaintiff, an employee in his service, with a reasonably safe place in which to do his work, is thoroughly established by the record.

Gulf Refining Company v. Nations, 145 So. 327; Kisner v. Jackson, 132 So. 90; Caver v. Eggerton, 127 So. 727; Pan-American Petroleum Corp. v. Pate, 126 So. 480.

Our court is amply supported in its findings in the Nations case by the following additional authorities not referred to there:

The Gulf Refining Company of La. v. Huffman & Weakley, 297 S.W. 199; Angell v. White Eagle Oil & Refining Co. et al., 210 N.W. 1004; Buckholz v. Standard Oil Co. of Ind., 244 S.W. 973; Standard Oil Co. v. Parkinson, 152 F. 681; Magnolia Petroleum Co. v. Johnson, 233 S.W. 680; Anderson v. Standard Oil Co., 264 N.W. 169; Standard Oil Co. v. Regan, 84 S.W. 69; Biggs v. Standard Oil Co., 130 F. 199; Waters-Pierce Oil Co. V. Snell, 106 S.W. 170; Ellis v. Republic Oil Co., 110 N.W. 20; Cohn v. Saenz, 211 S.W. 493; Catlin v. Union Oil Co. of Cal., 166 P. 29; Stowell v. Standard Oil Co., 102 N.W. 227.

The matter of sub-agency does not affect the rule, more especially in this case.

Wilcox v. Ruth, 9 S. & M. 476 (25 Miss.); Elmyra Co. v. McClure, 36. Miss. 393; Callahan Cont. Co. v. Reyburn, 69 So. 669; 2 C. J., sec. 539, p. 855.

The testimony that the Standard Oil Company repaired pipe after the accident was admissible for the special purpose of showing that the Standard Oil Company maintained and exercised a general control over the pipes, which was being controverted by the defendant at the very time.

Pan-American Petroleum Corporation et al. v. Pate, 126 So. 480; Finkbine Lumber Company v. Cunningham, 57 So. 916; Vaughn v. William F. Davis & Sons, 121 S.W. 786; Robertson v. Hill, 31 P. 871; Haygood v. Ogasapian, 112 N.E. 619.

Counsel for defendant assign as error and seriously set up that the cause ought to be reversed because the jury rendered a verdict against the weight of the evidence and contrary to the evidence, and assessed an exorbitant amount of damages against the defendant. The defendant had a way open to it of presenting a motion to the trial judge to set aside the jury's verdict for cause to be shown, and to order a new trial, but it did not do this.

St. Louis & San Francisco Railway Company v. Bridges, 125 So. 423.

The defendant urges against the plaintiff's right to recover in this case both contributory negligence and assumption of risk. Assumption of risk was abolished long ago, as evidenced by section 513 of the Annotated Code of 1930.

The common-law doctrine of contributory negligence has been abolished in this state for more than twenty years.

Section 511 of the Annotated Code of 1930.

Argued orally by Wade H. Creekmore and E. C. Sharp, for appellant, and by J. A. Cunningham, for appellee.

OPINION

Griffith, J.

Appellee was a servant at an oil and gasoline station, commonly called a service station, operated by appellant through an agent. There was an air pipe which extended across and over the ground adjacent to the gasoline pump, and which at the point of injury in this case was exposed about three or four inches above the ground and for a length of about three feet. This air pipe, according to the evidence, as believed by the jury, was in a dangerous position, in that when an employee called to serve the gasoline pump went to that place in the performance of his duties he would, unless on the alert, be liable to trip his feet on or against this exposed pipe line thus situated and elevated above the ground. On the occasion in question, the servant while engaged in the performance of his duties did trip his feet upon this exposed air pipe and suffered a violent fall and the consequent injuries for which he brought this action and recovered judgment.

We have said that appellant was operating this station through an agent. It is the main contention of appellant, however, that the person there in general charge was not an agent but was an independent contractor, and that appellee was not an employee of appellant but was the servant of said independent contractor. We have carefully examined the several contracts and the pertinent testimony bearing thereon, which, in substance, is undisputed, and we find that the record is so clear and free from doubt that the person in general charge was an agent and not an independent contractor that no value would result in a recital by us of the facts on that point or of the law to be applied thereto. There was no error by the trial judge in so holding as a matter of law and in instructing the jury accordingly, as he did.

It is next argued by appellant that the elevated and exposed situation of the air pipe was well known to appellee, and had been known to him for a long time, and that he therefore assumed the risk of the obvious danger. Under the facts of this case, appellant was the master and appellee the servant of appellant. The injury resulted in whole or in part from the negligence of the master; wherefore under our statute, section 513, Code 1930, the servant...