Standard Oil Company v. Foster, 18096.

• Decision Date: 18 July 1960
• Docket Number: No. 18096.,18096.
• Citation: 280 F.2d 912
• Parties: STANDARD OIL COMPANY, Appellant, v. Mrs. Josephine FOSTER, as Guardian ad Litem for Harry L. Cookson, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

280 F.2d 912 (1960)

STANDARD OIL COMPANY, Appellant, v. Mrs. Josephine FOSTER, as Guardian ad Litem for Harry L. Cookson, Appellee.

No. 18096.

United States Court of Appeals Fifth Circuit.

July 18, 1960.

David W. Dyer, L. L. Robinson, Miami, Fla., Louis S. Bonsteel, Miami, Fla., Smathers Thompson & Dyer, Miami, Fla., of counsel, for appellant.

Sam Daniels, Walter H. Beckham, Jr., William S. Frates, Miami, Fla., Nichols, Gaither, Green, Frates & Beckham, Miami, Fla., for appellee.

Before RIVES, Chief Judge, and JONES and WISDOM, Circuit Judges.

RIVES, Chief Judge.

This appeal is from a judgment in the amount of $150,000 for personal injuries suffered by Harry L. Cookson.¹ On August 28, 1956, Cookson was an employee of the corporate lessee-operator² of a Standard Oil Company service station in Miami, Florida. He was underneath an automobile which had been hoisted on a grease rack. The grease rack safety flaps³ failed, and the car rolled off the rack, crushing Cookson's head.

The evidence showed that the failure of the safety flaps to function properly was caused by improper maintenance of the moving parts of the grease rack; that is, by a failure to keep those parts clean and oiled. There is testimony that one of the flaps had been out of order⁴ for more than a month before Cookson was injured.

The sole insistence on appeal is that the district court erred in refusing to direct a verdict, or, in the alternative, to enter judgment for the defendant, Standard Oil Company, notwithstanding the verdict. Determination of that insistence turns on the answer to one narrow question, viz.: Was there evidence from which the jury could reasonably find that Standard Oil owed the plaintiff a duty to maintain the grease rack, and specifically the parts thereof which failed, in reasonably safe condition?

Standard Oil Company had built the filling station and installed this grease rack in 1954. Under date of June 1 of that year it had entered into a "Lease Agreement" of the premises with Otis E. Brown⁵ at a rental based upon the volume of petroleum products purchased from Standard. Paragraphs 9 and 10 of that agreement read as follows:

"9. The Lessor shall have free access to the premises herein leased for the purpose of examining or exhibiting same, or to make any necessary repairs or alterations on said premises which said Lessor may deem necessary or which Lessee may request, but no such entrance shall be made in any manner to unreasonably interfere with the use and operation of the premises by the Lessee.

"10. The Lessee hereby assumes complete custody and control of the premises described in this lease, the condition of which Lessee has examined and knows to be good and on which no representations as to the condition or repair thereof have been made by the Lessor. The Lessor shall not be liable for any damage caused by failure to keep said premises in repair, but it shall be the duty of the Lessee to protect from damage or loss any property that Lessee or any other person(s) may have upon the premises; and, further, the said Lessee agrees to indemnify and save harmless the Lessor, its agents or employees, against all claims, liabilities, losses and suits, from any source whatsoever, including any damage which may be sustained by the Lessee, caused by or in any manner resulting from the legal and/or illegal actions of the Lessee and/or his employees or agents; including also loss by leakage, fire or explosion of gasoline, kerosene and/or motor oils stored on the premises."

Standard did not claim, however, that this particular piece of equipment was covered by the "Lease Agreement." Its attorney stated to the Court: "The equipment was not leased, your Honor, it was loaned." And Standard introduced in evidence a separate "Equipment Loan Agreement" bearing the same date, June 1, 1954, signed by Brown, the lessee, but made "subject to the approval of an Officer, Division Manager or Assistant Division Manager of the First Party (Standard)" and never so approved. No objection was made when the district court instructed the jury that it "is not a legal contract since not signed by Standard and is merely a proposed contract by Brown." Whether proposal, contract, or simply some evidence of the practice, that "Equipment Loan Agreement" provided that "the First Party (Standard) hereby lends without charge to Second Party (Brown) the following described and enumerated equipment to be used exclusively for the storage and delivery of petroleum products purchased by Second Party (Brown) from First Party (Standard): * * *." The long list of equipment which follows includes the grease rack in question, described as "1 — G & B ML4 roll on hyd lift." The instrument further provided:

"After said equipment is installed, the Second Party:

"(a) is to have complete custody and control of same during the existence of this agreement;

"(b) is to make all necessary repairs to said equipment;

"(c) is to be responsible for any and all damages resulting from the operation of said equipment or its failure to operate."

It would thus appear that the present case actually involves a bailment rather than a lease of the grease rack, but that is of little or no moment, for the parties are in agreement that the pertinent legal principles are the same in either case. The relationship plus the written instruments which have been described very clearly do not, by themselves, impose upon Standard any duty to maintain the grease rack in reasonably safe condition.

The appellant invokes as controlling the well-established rule followed by this Court in Miller v. Sinclair Refining Company, 5 Cir., 1959, 268 F.2d 114, that a lessor is not liable for injuries to one on premises in possession of a lessee unless the condition causing injury is a violation of law, is a pre-existing defect in construction or is inherently dangerous, or unless the lessor undertakes to keep the premises in repair. (Emphasis ours.) The appellee does not challenge the validity of that rule, but rather relies upon the last stated exception, which we have emphasized, and insists that the jury could properly find from the evidence that Standard Oil...