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COOPER v. GRAHAM

June 25, 1957

JOHN HENRY COOPER, A MINOR OF THE AGE OF FOURTEEN (14) YEARS, APPELLANT,
v.
LYNWOOD (LENWARD) M. GRAHAM AND BEARD OIL CO., RESPONDENTS.



The opinion of the court was delivered by: Moss, Justice.

June 25, 1957.

This action was instituted by the appellant, John Henry Cooper, a minor of the age of fourteen years, through his Guardian ad Litem, to recover damages for personal injuries sustained by him on February 22, 1955, by reason of an explosion which took place at a filling station owned by Beard Oil Company and operated by Lynwood M. Graham, the respondents.

At the time of the injuries to the appellant, he was employed at the filing station owned and operated as aforesaid.

The complaint alleges that Lynwood M. Graham was the agent of Beard Oil Company and by reason of the negligence and willfulness of both the respondents, that the appellant sustained his injuries. There are ten specifications of negligence and willfulness in the complaint, seven of which are directed to the conduct of Beard Oil Company, two as to Lynwood M. Graham and one as to both respondents. The specifications of negligence and willfulness charged against Beard Oil Company are that it built and constructed a grease pit in connection with the filling station that was highly dangerous to the appellant, and installed an electrical outlet therein when it knew, or with the slightest degree of care, could have known that combustible and explosive materials were going to be used in said pit; that it equipped the said grease pit with faulty and dangerous appliances when the same was to be used with highly combustible and explosive gasoline; that it failed to properly inspect and maintain the said pump, extension and outlet located in said grease pit; that it failed to inspect or remove entirely the faulty electrical outlet, extension and pump installed in said pit, when it had notice by reason of a previous explosion at another station owned by it, similarly equipped to the station in question, with a faulty electrical outlet, extension and pump; that it failed to instruct its agent, Lynwood M. Graham not to employ infants who had no knowledge of the dangers of said pit and that it failed to provide the appellant a reasonably safe place in which to work. Two of the specifications charged negligence and willfulness on the part of Lynwood M. Graham in directing the appellant into the grease pit when he knew the same was highly dangerous, and that he failed to inspect the grease pit and the equipment used therein prior to requiring the appellant to use such defective equipment.

One specification of negligence and willfulness charges both respondents with owning, operating and maintaining a grease pit with appliances and equipment which were faulty and unfit to use and which were dangerous to the appellant when used.

The respondent, Beard Oil Company, answered the complaint, denying any relationship of principal and agent between Beard Oil Company and Lynwood M. Graham, and denied that the injuries sustained by the appellant were due to its negligence and willfulness. It also asserted, by way of answer, that Lynwood M. Graham operated the filling station as an independent contractor. The respondent, Lynwood M. Graham, also filed an answer, denying all allegations of the complaint charging him with negligence or willfulness, and sets up that he was not an agent of Beard Oil Company but was a lessee of the filling station premises and operated same as an independent contractor.

The case came on for trial in the Court of Common Pleas for Kershaw County, before Honorable G. Duncan Bellinger, Presiding Judge, and a jury. The testimony was taken in behalf of the appellant. At the close of appellant's testimony, the respondent, Beard Oil Company, moved for a nonsuit on the ground that there was no evidence of actionable negligence on its part and that there was no evidence establishing the relationship of principal and agent between Beard Oil Company and Lynwood M. Graham. Lynwood M. Graham also moved for a nonsuit on the ground that there had been no actionable negligence shown on his part. The motion as to Beard Oil Company was granted on the ground that the relationship of Beard Oil Company with Graham was that of an independent contractor. The trial Judge granted the motion of Lynwood M. Graham on the ground that there was no evidence of actionable negligence on his part.

The appellant, in due course, served Notice of Intention to Appeal from the Order of the trial Judge granting the motions for a nonsuit. The exceptions filed in this Court raise the question as to whether the Court below committed error in granting the motions for a nonsuit.

The practical question to be answered in this case is whether or not the evidence produced by the appellant shows as a matter of law that Lynwood M. Graham was an independent contractor rather than an agent or servant of Beard Oil Company. If the only reasonable inference to be drawn from the evidence is that Graham was an independent contractor, then the trial Judge was correct in granting the nonsuit as to Beard Oil Company. If the evidence was not susceptible as a matter of law to this conclusion, then it was error for him to grant the order of nonsuit.

What is an independent contractor? It has been repeatedly said that it is almost impossible to prescribe a formula applicable to all the varying facts and circumstances, especially where the contract is oral, insofar as the testimony in this case reveals.

In the case of Gomillion v. Forsythe, 218 S.C. 211, 62 S.E.2d 297, 304, this Court, in an opinion by the Honorable L.D. Lide, Acting Associate Justice, said:

"Factual variation with reference to the elements involved in the many cases coming before the Courts is so great that it may be said that practically each case depends upon its own peculiar circumstances, subject only to certain general principles. The following, however, seems to be a comprehensive and correct statement, which may properly serve as a guide with regard to the evidence before the Court in this case, the same being quoted from 56 C.J.S., Master and Servant, § 3 (1), p. 41: `An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work; an independent contractor is not a servant, and there is no master and servant relation between his servants and the employer or contractee'."

It appears from the record that Beard Oil Company is engaged in the distribution of Sinclair products. It owned a filling station on U.S. Highway No. 1 where its products were sold and dispensed to the public. It appears from the evidence that Beard Oil Company erected the filling station in question. This filling station was equipped with a grease pit in order to service motor vehicles. Installed in said grease pit was an electrical outlet for making a connection with a pump for keeping waste oil, water and gasoline from accumulating in said pit. The record conclusively shows that Beard Oil Company owned all of the equipment used for dispensing gasoline and servicing motor vehicles. Graham, as the operator of the filling station, owned what is described as being "on the inside of the station." The appellant produced as a witness Ralph J. Hatfield, who had previously operated the filling station. He testified that he ran the station for Beard Oil Company under several financial arrangements. It appears that the final arrangement was that Beard Oil Company would fill up the gasoline tanks and come out each afternoon and get the money for the gasoline that had been sold on that particular day and Hatfield would keep the profit. He testified that this arrangement was in force and effect with the respondent Graham. He knew this because he worked there until approximately one week prior to appellant's injury. He further testified that Sanford Rollins, who worked for Beard Oil Company, would come out about six o'clock in the afternoon and pick up the money for the day. He further testified that Beard Oil Company owned all of the equipment in the filling station, that it inspected, maintained and repaired this equipment, and that when anything broke down Beard Oil Company was notified and they would make the necessary repairs. He further testified that no other brand of gasoline, other than Sinclair, was sold at the station. He further testified that the electrical outlet for making a connection with the pump located in the grease pit was an ordinary outside plug, located on the outside of the grease pit wall, and that the cable from the pump would extend across the pit to the outlet. He further testified that in the event changes were to be made around the station that Beard Oil Company made them. He also testified that Beard Oil Company fixed the price at which gasoline was to be sold at the filling station. It is further in the testimony that when the arrangement was made whereby the representative of Beard Oil Company would check at the end of each day the gallonage sold and collect therefor, that he was not paying any rent for the station. He also testified that he did not know what arrangement Graham had with Beard Oil Company but he did know that Graham purchased from John Garganus, a previous operator of the station, for the sum of Five Hundred ($500.00) Dollars, what was "on the inside of the station." This was financed by Graham borrowing Five Hundred ($500.00) Dollars from the Auto Finance Company by mortgaging his automobile. The witness worked with Graham for a period of several weeks after this purchase and split the profits accruing from the operating of the filling station, he having agreed to pay half of the money expended by Graham for the purchase made from Garganus. He testified that when he quit working at the station, that John Henry Cooper, the appellant, was employed by Graham.

There was testimony by one Mendel B. Hatfield, who had been in the electrical contracting business, that this particular filling station was constructed by one Maxcey Berry for Beard Oil Company. He testified that the electrical outlet from the grease pit was an open socket and the "plug-in" was open for the connection, and when it was plugged in it would cause the gasoline fumes to ignite because there would be a spark when the motor was on starting point. He testified that there was nothing to protect the sparks from the electrical receptacle because it was wide open. He also testified that the morning after the ...


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