Texas Co. v. Wheat
| Decision Date | 27 January 1943 |
| Docket Number | No. 7985.,7985. |
| Citation | 168 S.W.2d 632 |
| Parties | TEXAS CO. v. WHEAT et al. |
| Court | Texas Supreme Court |
Action by Mrs. William M. Wheat and husband against the Texas Company and Sam Gossen to recover for injuries sustained by the plaintiff as result of a fall in front of the defendant's service station. The plaintiffs took a nonsuit as to Sam Gossen. From an adverse judgment, the plaintiff appealed to the Court of Civil Appeals. The Court of Civil Appeals, 159 S.W.2d 238, reversed the trial court's judgment and remanded the cause for a new trial, and the defendant brings error.
Judgment of the Court of Civil Appeals reversed, and judgment of the trial court affirmed.
Wm. E. Loose and W. O. Crain, both of Houston, Eskridge & Groce, of San Antonio, and Black, Graves & Stayton and Chas. L. Black, all of Austin, for plaintiff in error.
Wm. Aubrey, Carter & Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for defendants in error.
This suit was brought by Mrs. William M. Wheat and her husband against Sam Gossen and the Texas Company for damages for personal injuries sustained by Mrs. Wheat as the result of a fall in front of a service station in the city of San Antonio. At the conclusion of plaintiffs' evidence, plaintiffs took a nonsuit as to Gossen, and the court instructed a verdict in favor of the Texas Company. The Court of Civil Appeals reversed the judgment of the lower court and remanded the cause for a new trial. 159 S.W.2d 238.
The Texas Company leased the service station to Gossen. There was evidence that Gossen's employees negligently washed lubricating oil drained from an automobile on the premises across the sidewalk in front of the service station, and that Mrs. Wheat, who was walking on the sidewalk, slipped on the oil and fell and was injured. It was the contention of the plaintiffs that the relation of master and servant existed between the Texas Company and Gossen so as to make the company liable for the negligence of Gossen and his employees.
The contract between the Texas Company and Gossen was evidenced by written instruments, and the Court of Civil Appeals was of the opinion that these instruments, on their face, created the relation of landlord and tenant; but the court was also of the opinion that there were circumstances in evidence from which the jury could have drawn the inference that the real relation between the company and Gossen was that of master and servant. It was for this reason that the cause was remanded for new trial, and it was upon this holding that we granted a writ of error.
The testimony concerning the relation between the company and Gossen consisted entirely of written instruments and Gossen's testimony. The written instruments were the "Lease Contract," "Letter Modifying Rental Clause," and a "Sales Contract." Essential portions of these instruments are copied in the opinion of the Court of Civil Appeals, and need not be here repeated. The Lease Contract leased the premises to Gossen primarily for use as a service station at a rental of $280 per month for a period of one year, and from year to year thereafter, subject to the right of termination by either party at the end of the year upon ten days' notice. Lessee was required to keep the premises in good repair and in a clean, safe, and healthful condition, and upon default in any of the covenants lessor could terminate the contract. By letter written at substantially the same time as the delivery of the Lease Contract, the rent was reduced to $100 per month, plus one cent per gallon on each gallon of gasoline delivered to the premises in excess of 10,000 gallons per month. This provision, however, was only temporary and could be cancelled at the will of the lessor. In the event of its cancellation the original rental of $280 per month would apply. Simultaneously a Sales Contract was entered into by which Gossen agreed to buy from the Texas Company certain quantities of gasoline, oils, and greases each year — the prices, at seller's election at time of delivery, to be either the seller's posted service station price therefor, less seller's posted discount to dealers, or the seller's posted dealer's price therefor, as posted and displayed at seller's bulk plant from which the deliveries were to be made. While there was nothing in the contract to prohibit lessee from selling the products of other dealers at the station, he was not permitted to sell products purchased from others under the trade-mark or trade-name of the seller unless specifically so authorized by the seller. He was permitted to use the company's trade-marks and trade-names to identify and advertise products manufactured by the company and sold by him.
According to Gossen's testimony he purchased from a third party petroleum products and other personal property on the leased premises at a cost of $900, and after leasing the premises from the Texas Company, operated the station as his own. He had his name on the station; paid the light, water, and telephone bills and city license fees; employed, controlled, paid, and discharged his employees; fixed his own hours for opening and closing the station; purchased and paid cash for merchandise; handled batteries, tires, and other goods not sold by the Texas Company, and sold such merchandise, including commodities purchased from the Texas Company, for cash or on credit, and at such prices as he saw fit; bore the losses and kept the profits; and finally sold the lease, with the consent of the lessor, together with the merchandise on hand, for $1,300, and appropriated the money to his own use. There was evidence that the representatives of the Texas Company frequently conducted schools or gave lectures for operators of service stations, and that he was notified when and where these meetings were to be held. He was invited to attend these meetings, but was not required to do so. He usually attended the meetings. He thought it was to his interest to do so because it improved his ability to make sales. At these meetings he was taught how to approach a customer, what kind of service to render, how to render it in the most efficient manner in the shortest time, how to lubricate cars, and how to keep the station and rest rooms clean. He attended these meetings and obtained a "Diplom...
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