168 S.W.2d 632 | Tex. | 1943
delivered the opinion of the Court.
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
According to Gossen’s testimony he purchased from a third party petroleum products and other personal nroperty on the leased premises at a cost of $900.00, 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
The above facts involve all of the circumstances suported by the evidence, which have been pointed out by the plaintiffs as tending to show that the relation of master and servant existed between The Texas Company and Gossen.
Whether or not the relation of master and servant existed between The Texas Company and Gossen so as to make the doctrine of respondent superior applicable, depends on whether The Texas Company had the right to control Gossen in the details of the work to be performed in the operation of the service station. Carter Publications, Inc. v. Davis, 68 S. W. (2d) 640, 641 (writ refused); Lone Star Gas Co. v. Kelly (Com. App.), 46 S. W. (2d) 656.
The contract between the company and Gossen on its face, as evidenced by the written instruments, created the relation of landlord and tenant, and not the relation of master and servant, and we find nothing in the evidence to indicate that the contract, as written, was intended as a subterfuge or sham to conceal the existence of a different relationship. The fact that Gossen paid rent, bought and paid for the merchandise, bore all the expenses of operating the station, employed and controlled the employees in the discharge of their work, stood the losses and appropriated the profits is consistent with the relationship of landlord and tenant, and inconsistent with that of master and servant.
Neither do we find anything in the evidence to justify an inference that after the contract had been entered into it was abandoned, and thát the company assumed charge of and actually controlled the details of the operation of the station. It is true that the company demanded that certain standards as to cleanliness be maintained in the operation of the station,
The company was interested in having prompt and efficient service rendered by operators at stations where products manufactured by it were offered for sale. Consequently, it conducted voluntary schools for such operators, and from time to time gave helpful suggestions at the stations. These instructions or suggestions were of mutual benefit, for they enlarged the operator’s sales and increased the consumption of the products manufactured by the company. The instructions so given by the company’s representatives as to how to service cars were understood by both parties to be mere suggestions, which Gossen could accept or reject as he liked. The company by giving such instructions did not undertake to authoritatively direct how the work was to be done.
The injury in this case was caused through the negligence of Gossen’s employees in flushing oil over the sidewalk while cleaning the floor of the service station. We think it clear from the evidence that the company did not have the right nor did it undertake to exercise the right to control Gossen and his employees in the details to be followed by them in keeping the service station clean. They were free to perform such work as they saw fit. They were therefore not acting as the employees of the company in cleaning the service station — the act out of which this injury grew — and consequently the company is not liable for the negligence of such employees. American National Ins. Co. v. Denke, 128 Texas 229, 95 S. W. (2d) 370, 107 A. L. R.. 409.
In the case of The Texas Company v. Freer, 151 S. W. (2d) 907, relied on by the plaintiffs, the station was operated under The Texas Company’s name. The operators did not have their name on the station. The operators testified that they operated the station “on a commission” and “got so much money according to the amount of gas sold.” The company’s representative gave instructions to the operators as to the keeping of the station clean and the price to be charged for gasoline and other products. The operators were not permitted to sell any products except those supplied by the company, and they could not change the price of the products without the company’s consent. No such facts are presented in the case before us.
Under the facts of this case we are of the opinion that the trial court properly instructed a verdict for defendant.
The judgment of the Court of Civil Appeals is reversed, and
that of the trial court is affirmed.
Opinion delivered January 27, 1943.
Rehearing overruled March 3, 1943.