Westre v. De Buhr

Decision Date18 August 1966
Docket NumberNo. 10270,10270
Citation144 N.W.2d 734,82 S.D. 276
PartiesNorman WESTRE, Plaintiff and Respondent, v. John DE BUHR and Sinclair Refining Company, a Corporation, Defendants and Appellant.
CourtSouth Dakota Supreme Court

Christensen & Christensen, Elk Point, for appellant.

Bogue & Weeks, Vermillion, for respondent.

COOPER, Circuit Judge.

This is an action to recover damages for personal injuries sustained by the respondent at Jack's Sinclair Service, Vermillion, South Dakota, while respondent's tire was being mounted on a rim by John DeBuhr, operating the service station under lease from appellant Sinclair Refining Company. Judgment was entered against both John DeBuhr and Sinclair Refining Company in the amount of $8,000.00. John DeBuhr did not defend the action, nor has he appealed from the judgment.

The principal question on this appeal is whether the evidence, construed in the light most favorable to respondent, is sufficient to establish that John DeBuhr was an employee of Sinclair Refining Company so that the latter is liable under the doctrine of respondeat superior.

The definition of a servant is set out at length in Restatement of the Law, Agency, 2d, Vol. 1, § 220, and cases citing such definition are found in Vol. 3, Pages 302--325. As applicable to retail gasoline stations, this question is annotated at length in 116 A.L.R. 470--473 and 83 A.L.R.2d 1292--1303. To attempt to cover and differentiate the numerous cases cited would unduly lengthen this opinion.

Suffice it to say that the deciding factor appears to be the extent of the control exercised by the oil company, and that the decided weight of opinion in the cases with leases and sales agreements similar to the ones presented here, holds that the service station operator occupies the position of an independent businessman rather than an employee.

The lease in question here is a form printed by Sinclair Refining Company providing for a rental computed at 1.5 cents per gallon of gasoline delivered to said station for sale therefrom, with a minimum of $150 except for August through November, when the minimum is $125. It was further provided that if the amount of rental is computed on the volume of business, that lessee agrees to promote diligently the sale of gasoline and other products, and keep the station open for the same time as competing service stations were open. The lease also contained a provision that the rest rooms and toilet shall be kept clean and hygienic so as to comply with standards set by any laws or ordinances, and a further provision that, without lessor's prior written consent, no part of the station could be used for motor overhauling, body and fender repairing or refinishing, tire recapping, welding or for any activity which cannot be conducted safely in the presence of volatile petroleum products. There is also a clause wherein lessee agrees to indemnify lessor for any liability for damages arising out of the operation of the station.

Similar types of clauses are found in many leases. None of these indicate the type of control sufficient to establish anything but a landlord-tenant relationship. Nor does the fact that the rental was lowered at one time indicate anything but a desire to retain a tenant. The sales...

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3 cases
  • B. P. Oil Corp. v. Mabe
    • United States
    • Maryland Court of Appeals
    • March 18, 1977
    ...815, 818 (Okl.1963); Green v. Independent Oil Company, 414 Pa. 477, 201 A.2d 207, 210-11 (1964); and Westre v. De Buhr & Sinclair Ref. Co., 82 S.D. 276, 278-79, 144 N.W.2d 734 (1966). Coe and Westre are so close factually to the case at bar as to warrant quotation at some length. In Coe the......
  • Wayne E. Shaffer v. Anthony Maier, 91-LW-5136
    • United States
    • Ohio Court of Appeals
    • December 4, 1991
    ... ... v ... Vanderveen (1984), 683 P.2d 1345; Watkins ... v. Mobil Oil Corp. (1986), 291 S. C. 62, 352 S.E.2d ... 284; Westre v. DeBuhr (1969), 82 S.D. 276, ... 144 N.W. 2d 734 ... These ... cases are based on the observation that "[i]t is a ... ...
  • Karlen v. Butler Mfg. Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 11, 1975
    ...to handle all customer complaints. 5 We note the South Dakota court's reliance upon the Restatement in the case of Westre v. De Buhr, 82 S.D. 276, 144 N.W.2d 734 (1966). 6 is ostensible when by conduct or want of ordinary care the principal causes a third person to believe another, who is n......

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