Opinion
No. 40860.
November 3, 1958.
1. Landlord and tenant — lessor of gasoline service station not liable to owner of automobile for damage resulting thereto when automobile fell from defective grease lift.
Lessor of gasoline service station was not liable to owner of automobile for damage resulting to automobile when it fell from grease lift, which was defective, where there was no showing that lessor knew or should have known of any defect in the grease lift, and the only showing was that the grease lift was defective during term of an earlier lease and that lessor had repaired the grease lift.
2. Landlord and tenant — same — doctrine of res ipsa loquitur — not applicable — where lessor neither had control of grease lift or the operation thereof.
In such case, doctrine of res ipsa loquitur was not applicable where lessor of gasoline filling station neither had control of grease lift nor control of the operation thereof at station.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, JR., J.
Sims Sims, Columbus, for appellant.
I. The Court erred in sustaining the East Mississippi Oil Company's motion for a directed verdict in that there was evidence in the record showing that the grease rack did not perform properly, and that the grease rack reacted the same way when the witness, Tate, was operating the service station for East Mississippi Oil Company. Williams v. Lodge, 154 Miss. 74, 122 So. 490; 53 Am. Jur. 281-82.
II. The Court erred in overruling Lollar's motion for a new trial, and would show that the doctrine of "res ipsa loquitur" applied in this cause inasmuch as Lollar had no control whatsoever over the events that happened in this cause; and both East Mississippi Oil Company, Inc., as well as J.E. Walker, were responsible for the damages to the automobile of Lollar. Blashfield's Cyclopedia of Automobile Law Practice, Sec. 6043 p. 435.
Roger C. Landrum, Columbus, for appellee.
I. The mere fact that the hoist worked improperly at some time while Mr. Tate operated the station is no proof that the hoist continued to work improperly up to the time of the accident. The record shows that Mr. Tate operated the station for approximately a year prior to April 20, 1954, but did not operate it after that date. Mr. Tate did notify appellee at some time during his operation of the station that the hoist jumped, and appellee filled it with oil and it worked properly thereafter.
II. The record shows that Mr. J.E. Walker, who had the station under lease at the time of the accident, never notified appellee that the hoist was defective in any way. If the hoist was defective at the time of the accident, there is not one iota of evidence in the record that appellee knew of the defective condition, if any, or that it should have known of the defective condition if it had exercised reasonable care. There is no evidence in the record that it is customary in the service station business to make periodic inspections of a hoist and that appellee failed to make such inspections if they were necessary or customary. Even assuming that the hoist was defective at the time of the accident and that such defect was one of the proximate causes of the accident, there is no proof in the record that appellee was negligent in any manner. There is certainly no law that makes appellee an insurer with respect to the equipment furnished their lessee, J.E. Walker.
III. The doctrine of "res ipsa loquitur" is not applicable to the case at bar. 38 Am. Jur., Sec. 296 p. 992.
IV. J.E. Walker was an independent contractor and appellee was not liable for any negligence on the part of J.E. Walker or his agents. Shell Petroleum Corp. v. Linham (Miss.), 163 So. 839.
Appellant sued J.E. Walker and East Mississippi Oil Company, Inc., for damages appellant's automobile sustained when it fell off a grease lift while being serviced by Walker. Walker defaulted and judgment was entered against him. The trial court granted appellee, East Mississippi Oil Company, Inc., the peremptory instruction and appellant appeals from the judgment entered in favor of appellee, East Mississippi Oil Company, Inc.
Appellee leased to Walker a service station, including the grease rack or lift, which appellee agreed to keep in repair. Appellant left his automobile with Walker to be serviced. Walker improperly placed the automobile on the grease rack so that the front end was where the rear end should have been. The rack was constructed so that there was a flat bar for the front axle to rest on, and a fork for the rear axles to rest on to accommodate the protrusion in the center of the rear axle housing the differential. As placed on the rack by Walker, the round differential housing was resting on the flat bar of the grease rack designed for the front axle. Because it was in a state of disrepair, the grease lift vibrated and appellant's automobile fell and was damaged. While the evidence showed that the automobile would not have fallen if it had been properly placed on the rack, it also appears that the jury could have found, had the case been submitted to it, that the automobile would not have fallen if the grease rack had not vibrated.
The appellant showed by the evidence that at some time before Walker leased the service station, and while the station was leased to one Tate, the grease rack had vibrated in the same manner as it did when appellant's automobile was damaged, and that Tate notified the appellee. It was also shown without dispute that appellee repaired the grease rack and it worked properly during the balance of Tate's tenure as lessee of the service station, and that neither Walker nor anyone else gave appellee any further notice that the grease rack was out of repair. There was no proof that the appellee knew or should have known of any defective condition in the grease rack prior to the time when appellant's automobile was damaged.
(Hn 1) It is not contended that appellee is vicariously liable for the negligence of Walker. Cf. Shell Petroleum Corp. v. Linham, 163 So. 839. It is the contention of appellant that since appellee had notice that the grease rack was out of repair when it was being operated at some indefinite past date when Tate was the lessee of the service station and it then vibrated in the same manner as it did when appellant's automobile fell from the rack, the case should have been submitted to the jury on the question of appellee's liability. But the record shows without dispute that appellee repaired the grease rack after Tate gave notice it was out of repair, and thereafter it operated properly for Tate. No one ever thereafter notified the appellee that the grease rack was out of repair prior to the damage to appellant's automobile. There is nothing in the record to show that appellee knew or should have known of any defect in the grease rack prior to the damage complained of. Appellant has cited no case sustaining his position, and we know of no rule of law whereby appellee could be liable under the facts revealed by this record.
(Hn 2) Appellant also contends that the doctrine of res ipsa loquitur applies to this case, but there is no merit to this contention. Appellee neither had control of the apparatus nor the operation thereof.
Affirmed. McGehee, C.J., and Kyle, Arrington and Ethridge, JJ., concur.