(dissenting).
I cannot concur in the Majority opinion in this case. That opinion remands the case for a new trial, apparently on the theory that the jury at the previous trial was de-ficiently instructed, and consequently, did not determine a necessary issue of fact.
Said opinion says, among other things:
“The question of whether Texaco exercised control over Anderson and his employee in the activities which resulted in the injuries complained of-was not submitted to the jury.” (Emphasis mine).
I dispute this statement.
It will be remembered that plaintiff’s decedent, Jimmy Alexander, was killed in an explosion and fire ignited when the Texaco station employee, Clarence L. Little, was cleaning out a 'truck’s gasoline tank preliminary to selling the truck’s operator a refilling of Texaco gasoline. Whether Little was doing this in furtherance of the filling station’s agency agreement entered into by said station’s lessee and operator, Anderson, with Texaco, for said station to sell Texaco gasoline exclusively, was the crucial issue in this case; and, in my opinion this issue was properly and squarely pre*400sented to the jury principally by the following instructions given by the trial court:
"INSTRUCTION NO. 10.
“If you find from a preponderance of the evidence that Clarence L. Little at the time of the injury to the plaintiff’s decedent was operating and engaged in employment by Anderson in Anderson’s capacity as an independent contractor, then your verdict must be for the defendant. Or if you find that Little was acting as an employee for Anderson in Anderson’s capacity as agent for Texaco, Incorporated, in the sale of gasoline, but was not acting within the scope of that agency at the time of the accident and injury, then your verdict must be for the defendant, Texaco, Incorporated.
“INSTRUCTION NO. 11.
“You are further instructed that Clarence L. Little so far as he was employed by Bob IT. Anderson for the purpose of carrying out the duties of Anderson as an agent for defendant, Texaco, IN THE SALE OF GASOLINE, and so long as Little was engaged in the scope of the agency of Anderson with the defendant, Texaco, incorporated, and in the scope of his employment Little was an agent of defendant, Texaco, Incorporated, and the defendant would be liable for the acts of negligence of Little vohile so engaged, if any.” (Emphasis mine).
With obvious reference to the above-quoted instructions (and perhaps others), the Maj ority opinion correctly states:
“Insofar as the questions involved in this appeal are concerned, the precise question of fact submitted to the jury was whether Little’s activities at the time of the explosion and fire were in connection with his employment by Anderson in the general operation of the filling station business, or in connection with his employment by Anderson in the carrying out of Anderson’s dtities as Texaco’s agent.” (Emphasis mine).
The Majority opinion then follows with a statement, a part of which is that “ * * * the written contracts between the parties did not justify a peremptory instruction * * * that Anderson was Texaco’s agent for the purpose of the sale of gasoline * * * ¡i. ^s justification for this conclusion, the sentence rather ambiguously adds “ * * *, since the contracts do not show * * * that Texaco retained the right to control Anderson or his employees in respect to the transaction out of which the injury arose.” (Emphasis mine).
What was the “transaction out of which” Jimmy Alexander’s injuries and death “arose” ? As I have indicated, it was cleaning out a customer’s gasoline tank preparatory to refilling it with Texaco gasoline. Did not Instructions numbered “10” and “11” submit to the jury the question of whether this cleaning out the tank was a part and parcel of, and necessarily involved in, a prospective sale of Texaco gasoline to refill that same tank, for which such sale Little’s employer, Anderson (and/or the filling station leased by him) was undoubtedly an agent for Texaco, Incorporated? I say that the instructions in the trial involved here did effectively submit that question for the jury’s determination. I think mere examination of the court’s above-quoted instructions is sufficient to contradict the majority opinion’s above-quoted statement that: “The question of whether Texaco exercised control over Anderson and his employee in the activities which resulted in the injuries complained of was not submitted to the jury.” Since, in my opinion, this question was submitted, and has been answered in the administrator’s favor by the jury’s verdict and the trial court’s judgment, I think the majority opinion unnecessarily and unjustly subjects him to a second trial for a re-determination of that same question.
For the foregoing reasons, I dissent.