Texas Co. v. Freer

• Decision Date: 24 April 1941
• Docket Number: No. 2262.,2262.
• Citation: 151 S.W.2d 907
• Parties: TEXAS CO. v. FREER et al.
• Court: Texas Court of Appeals

151 S.W.2d 907

TEXAS CO. v. FREER et al.

No. 2262.

Court of Civil Appeals of Texas. Waco.

April 24, 1941.

Rehearing Denied June 12, 1941.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

Action by J. R. Freer and wife against the Texas Company for injuries and death from a fire at a filling station leased by defendant. From a judgment for plaintiffs, defendant appeals.

Affirmed.

H. S. Garrett, of Fort Worth, John C. Jackson, of Houston, Forrester Hancock, of Waxahachie, and Black, Graves & Stayton, of Austin, for appellant.

Clark, Craik, Burns & Weddell and J. M. Stegall, all of Fort Worth, for appellees.

HALE, Justice.

J. R. Freer and wife, Mrs. Hazel Freer, for themselves and as next friend, instituted this suit against the Texas Company and J. H. Henderson for the recovery of damages on account of injuries resulting in the death of their daughter, Hazel Kathryn Freer, two years of age, and on account of serious personal injuries sustained by another daughter, Phyllis Freer, thirteen years of age.

Early in the morning of September 13, 1937, Mr. and Mrs. Freer, with their three children, were en route from Teague to Ft. Worth by automobile. Mrs. Freer was driving the car. The two children who were injured were riding in the front seat and Mr. Freer, with the other child, was in the rear seat asleep. Upon arriving at Ennis, Mrs. Freer drove into a filling station known as "Fire Chief Service Station," and requested the attendant, Henry Barkley, to drain some bad East Texas gasoline out of her car and to replace the same with good gas. While the attendant was draining the bad gasoline from the car, Mrs. Freer repaired to a coffee shop nearby and upon her return, after paying for the gas which she had purchased, she attempted to start the car, when it backfired and thereupon it became apparent that there was fire in or under the car. Mrs. Freer then got out of the car, and Phyllis, with Hazel Kathryn in her arms, while attempting to get out of the car, fell to the driveway and immediately the clothing of both children became ignited and they were engulfed with flames, which resulted in the injuries complained of.

It was alleged that J. H. Henderson was the owner of the ground and building where the accident happened. However, it appears from the evidence that H. W. Davis was the owner and that on May 25, 1933, he leased the premises to the Texas Company for a period of five years, and on December 16, 1936, the Texas Company subleased the premises to Glover & Barkley for a period of one year, to be used as a filling station. Upon the conclusion of the testimony, the court, without objection from any of the parties, peremptorily instructed the jury to return their verdict in favor of J. H. Henderson and he went out of the case.

The jury found, in substance, that on December 16, 1936, the driveway, near the underground tanks of said filling station, contained a depression, which condition continued on to and including September 13, 1937, and the underground tanks were so situated that when cars stopped for service, the same would be immediately over the filler pipes opening into said tanks; that gasoline accumulated in the driveway of said station at a place where cars usually stopped for the purpose of being serviced with gasoline, and that the manner in which said underground tanks were constructed and maintained constituted negligence and a proximate cause of the injuries complained of; that on December 16, 1936, the driveway at said station was in such condition as to constitute a nuisance, and the Texas Company, its agents, servants or employees, knew and in the exercise of ordinary care should have known of the condition of such driveway, which was negligence and a proximate cause of the injuries complained of; that the Texas Company on and prior to September 13, 1937, held out to the public that it had the control of the station in question; that Mrs. Freer believed the Texas Company was in control of said station and that the same was constructed and operated in a safe manner when she drove into the same; and that Henry Barkley, who, on September 13, 1937, was an employee of the Texas Company, and who was not operating said station as an independent contractor, permitted gasoline to run out upon the driveway and collect in a pool under and about plaintiffs' car, which was negligence and a proximate cause of the injuries complained of. The jury further found the amount of the damages sustained; that the happening of the event in controversy was not the result of an unavoidable accident and that the same was not proximately caused or contributed to by any negligence on the part of Mrs. Freer.

The court rendered judgment on the verdict of the jury against the Texas Company and in favor of J. R. Freer and wife for the sum of $2,332.25, and in favor of Phyllis Freer for the sum of $2,000, and the Texas Company has duly perfected its appeal.

By numerous assignments, appellant asserts that the trial court should have granted its seasonable request for an instructed verdict, and should not have submitted various issues to the jury because they were not raised by the evidence. Its first contention is that the evidence was insufficient to show that it was responsible under the doctrine of respondeat superior for the negligence of Henry Barkley. Upon the trial it introduced in evidence the two lease contracts above referred to and it elicited verbal testimony from certain witnesses tending to show that the lease contract between itself and Glover & Barkley was the only agreement between the parties with reference to the operation of the station in question; that Henry Barkley, who spilled the bad gasoline which he was attempting to drain from appellees' automobile immediately prior to the time of the occurrence complained of, was in exclusive possession and control of the filling station, engaged in an independent business of his own, and that he did not sustain toward appellant the relationship of an employee.

In passing upon the asserted right to an instructed verdict, however, we must view the evidence and all reasonable inferences to be drawn therefrom in the most favorable light for the appellees. If there is any evidence in the record of probative force which would justify findings in favor of appellees on ultimate issues determinative of appellant's legal liability for the damages sought, then this court could not properly hold that the overruling of the request for a peremptory instruction was erroneous. Thomas v. Postal Telegraph-Cable Co., Tex.Com. App., 65 S.W.2d 282; American Gro. Co. v. Abraham, Tex.Civ.App., 94 S.W.2d 1231, and cases cited; City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652.

The written lease agreement between H. W. Davis and the Texas Company provided that lessor should maintain the premises in good repair during the term of the lease, but that if he failed to do so, lessee may, at its election, make the necessary repairs at the expense of lessor; that lessee should pay to lessor as rental for the premises "a sum equal to one cent for each gallon of lessee's gasoline sold from said premises each month during the term hereof, payable monthly"; that "should lessee for any reason be prevented from establishing or continuing the business of distributing petroleum products on said premises, or should said business for any reason in lessee's judgment become unduly burdensome, lessee may terminate this lease"; that lessee should have the right to sever and remove all fixtures, equipment and other property placed on said premises by lessee during the term of this "or any previous lease." This lease was in full force and effect on September 13, 1937, when the injuries complained of were sustained.

The lease agreement dated December 16, 1936, between appellant as lessor and Glover & Barkley as lessee provided that lessee should maintain the premises in good repair during the term of the lease, but that upon failure to do so, the lessor may make the necessary repairs for the account of lessee; that lessee should pay to lessor as rental for the premises and equipment therein described the sum of $40 per month; that the lease is subject to the terms and conditions of the prior lease between lessor and the owner of the demised premises, and that the same should automatically terminate upon the termination of said lease between lessor and the owner of the demised premises; that upon the expiration of the agreement or the termination thereof, lessee should yield up and return to lessor the said premises, and all the buildings, improvements, fixtures, tools, equipment and facilities so received by lessee.

The evidence indicates that there was another written agreement between appellant as seller and Glover & Barkley as purchaser with reference to the sale of products at the station in question, but this contract was not...