Tate v. Claussen-Lawrence Const. Co.

• Decision Date: 07 February 1933
• Docket Number: 13576.
• Citation: 167 S.E. 826,168 S.C. 481
• Parties: TATE v. CLAUSSEN-LAWRENCE CONST. CO. et al.
• Court: South Carolina Supreme Court

167 S.E. 826

168 S.C. 481

TATE v. CLAUSSEN-LAWRENCE CONST. CO. et al.

No. 13576.

Supreme Court of South Carolina

February 7, 1933

Appeal from Common Pleas Circuit Court of Abbeville County; C.J Ramage, Judge.

Action by J. V. Tate against the Claussen-Lawrence Construction Company and another. From a judgment in favor of plaintiff defendants appeal.

Affirmed.

J. M Nickles, of Abbeville, C. B. Earle, of Anderson, and Haynsworth & Haynsworth, of Greenville, for appellants.

William P. Greene and J. Moore Mars, both of Abbeville, for respondent.

BONHAM Justice.

Plaintiff brought this action to recover damages for the destruction by fire of his garage and filling station building situate at Calhoun Falls in Abbeville county, through the alleged joint and concurrent negligence, willfulness, and wantonness of the defendants. The garage and filling station were occupied by McLanahan Brothers, under a contract from Gulf Refining Company, who were lessees from Dr. Tate, the owner thereof. The building was situate at the intersection of Savannah and Depot streets. The complaint states the alleged negligence of Claussen-Lawrence Company in this wise: This concern was engaged, under a contract with the state highway department, in paving a highway which extended from Calhoun Falls to Abbeville. At a point at, or near, the intersection of Savannah and Depot streets in the town of Calhoun Falls, the construction company, as we shall call it, was engaged in paving Depot street. At a point variously estimated by the witnesses as from 9 feet, 10 inches, to 12 or 15 feet from the filling station, the construction company had set up a board with a warning that the road was closed to travel. About, or after, sundown of the 18th day of September, 1931, it placed at the foot of this warning barricade a torch or flambeau, consisting of a metal pot with lighted wick, the flame being uncovered. Then the complaint alleges the negligence of the Gulf Refining Company concurred with the negligence of the construction company in the following manner: Shortly after the flambeau was placed, the agent of the Gulf Refining Company, which we shall designate as the refining company, drove up to the filling station, backed the truck he was driving up to the station for the purpose of filling the underground tank. The procedure was as follows: A funnel was fitted into the receiver of the underground tank, into the metal drum containing the gasoline was fitted a rubber hose, and the faucet on the drum turned, which released the gas into the mouth of the funnel; that the gas in the funnel was thus in the open air; that in such circumstances gas will vaporize, and seek the level of the ground, especially in the evening; that in this instance it did so vaporize, drifted, or was driven by the wind to the burning flambeau, and an explosion followed, which ignited the gas in the funnel; that the driver of the truck who was engaged in putting the gas in the funnel, jerked the hose from the funnel when the explosion came, waved it about excitedly, scattering gas on the building, on an automobile and on persons, causing the conflagration which destroyed the building to spread.

The construction company for answer set up a general denial.

The refining company for a first defense set up a general denial, and for a second defense alleged that the driver of the truck who was engaged in the act of placing the gas in the tank was the servant and employee of C. A. Dixon, who under a written contract with the refining company was an independent contractor in distributing the products of the said company; that under the contract the refining company had nothing to do with the driver, or the truck, nor any control of them; that it was, under the terms of the contract, expressly released from any responsibility for the acts, or omissions, or negligence of Dixon, his agents, servants, and employees; that under the contract Dixon was to sell and distribute the products of this defendant on a commission basis merely and this defendant did not retain any control over the means or methods by which this was done; that Dixon furnished his own equipment, employed his own servants, and directed their movements, without interference by the refining company.

The case came on for trial by Judge Ramage and a jury, and the plaintiff had a verdict against both defendants.

At the conclusion of the testimony for plaintiff, counsel for the construction company moved for nonsuit, which motion was refused. At the conclusion of all the testimony both defendants moved for directed verdict, and after the verdict both of the defendants moved for new trial; all of which motions were denied, and both defendants appeal.

The exceptions of the construction company allege error for that: There is no evidence of actionable negligence on the part of this appellant:

That if it be shown that this defendant was negligent as set forth in the complaint, it is conclusively shown by the testimony that such negligence was not the proximate cause of the damage.

That it conclusively appears from the testimony that the negligence of the defendant Gulf Refining Company, or its alleged agent, Dixon, or the driver of the truck, was the proximate cause of the injury.

That it was error to refuse the motions for nonsuit, directed verdict, and new trial.

The exceptions of the refining company are upon the grounds that: It was error to refuse its motion for directed verdict because under the written contract it appeared that the relationship between the refining company and Dixon was that of employer and independent contractor. That the evidence showed no negligence on the part of this defendant, but showed that the driver of the truck was not the agent or servant of this defendant, but was the servant or employee of Dixon, an independent contractor.

Error to the presiding judge for failing to instruct the jury as a matter of law that under the written contract between the refining company and Dixon, which contract was in evidence, Dixon was an independent contractor, and hence defendant could not be held liable for the negligence of the driver of the truck of the independent contractor.

Error in admitting in evidence, over objection, the lease agreement between Tate and the refining company, the authorized dealer agency agreement between the refining company and McLanahan, and the courtesy card given Tate by the refining company.

One is reminded by the attitude of these litigants toward each other of the famous triangular duel in which Midshipman Easy shot the purser, the purser shot boatswain, who shot at but missed the midshipman.

The cardinal question which confronts us at the threshold of the case is this: Does the contract between the refining company and C. A. Dixon alone determine the relationship between them, and does it show as a matter of law that the refining company is the employer and C. A. Dixon is an independent contractor for the sale and distribution of the products of the company? An allied question is: May that relationship be shown by evidence independently of the contract, or supplemental of the contract? In other words, may the plaintiff show that while the written contract may fix the relationship of employer and independent contractor between the refining company and Dixon in regard to the selling and distribution of the products of the company, nevertheless it is competent to show by other evidence that there are other contracts and connections between the parties which create in regard thereto the relationship of principal and agent.

The appellant the refining company has planted itself squarely upon the decision of this court in the case of Sams v. Arthur, 135 S.C. 123, 133 S.E. 205, in which the court construed a contract somewhat similar in its terms to that introduced in this case, and held that it established between the Gulf Refining Company and Arthur the relationship of employer and independent contractor, and that it being the duty of the court to construe the written instrument, it was error not to grant the motion for directed verdict made in behalf of Gulf Refining Company.

In our case the trial judge refused to grant such a motion, but in charging the jury he gave this defendant the full benefit of the doctrine of the Sams Case by charging the jury in these words: "I charge you as to this Memorandum of Agreement between Gulf Refining Company and C. A. Dickson--I charge you if that is all--if this contract is the only thing-- if this contract, this writing, is the only thing you find upon which to base liability against the Gulf Refining Company in the case, you find a verdict for the Gulf Refining Co. (Exhibiting Exhibit '4') This paper here--you take that...