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Wilson v. Clark Oil & Refining Corp.

OPINION FILED JULY 10, 1985.

LOUIS WILSON, JR., PLAINTIFF-APPELLEE,

v.

CLARK OIL & REFINING CORPORATION ET AL., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff, Louis Wilson, Jr., brought this action to recover damages for injuries he sustained as a result of the alleged negligence of the defendants, Lester Cordevant and Clark Oil and Refining Corporation (Clark). The plaintiff's injuries resulted when he was shot accidentally by Cordevant, an employee of Clark, at a gasoline service station operated by Clark in Washington Park. The plaintiff's motion to dismiss Cordevant as a defendant was granted at the close of the plaintiff's case, and the jury subsequently returned a verdict for the plaintiff and against Clark, holding Clark liable under the doctrine of respondeat superior. On appeal from the judgment entered on the verdict, Clark contends that the evidence failed to show that its employee, Cordevant, was acting within the course and scope of his employment with Clark at the time of the occurrence. Clark contends additionally that, even if Cordevant was acting in the course and scope of his employment, Clark cannot be held liable under the doctrine of respondeat superior because the plaintiff was an invitee of Cordevant's or, at best, a mere licensee of Clark's when the accident occurred. We affirm.

The incident giving rise to the plaintiff's injuries occurred on June 14, 1982, at approximately 2:30 p.m., while Cordevant was working at a self-service gasoline station operated by Clark. Cordevant was the assistant manager of the station, which consisted of a small office building with a window facing out onto the parking lot and the gasoline pumps. There was a dump drawer at the bottom of the window through which customers could pay for their purchases. Inside the office were miscellaneous items such as soda, candy and cigarettes. It was company policy that the office itself was not open to members of the general public and the door was to be kept locked, although it was often unlocked during the day when the attendant on duty had to stock the vending machines or perform some other task that required going in and out of the office.

On the day of the incident a friend of Cordevant's, Paul Apostol, stopped at the station to buy cigarettes. As a police officer for the National City police department, Apostol carried his gun with him when he was off-duty, as he was on the date in question. When Apostol arrived at the station, the door to the office was unlocked with Cordevant inside, and Apostol went in to join him. Once inside the station Apostol took his .357 magnum pistol out of his jacket and placed it on the counter. Apostol and Cordevant were discussing their plans to go target shooting after Cordevant got off work that afternoon at 4 p.m., when the plaintiff, also a friend of Cordevant and Apostol, arrived at the station. The office was locked at that time, and Apostol unlocked the door to let the plaintiff in. Once inside, the plaintiff purchased a soda for his mother.

The three men stood inside the office discussing various things for about 15 minutes. All three men were facing out toward the parking lot, with Cordevant positioned furthest to the right, the plaintiff immediately to his left, and Apostol immediately to the left of the plaintiff. At one point Cordevant made a comment about the sight on Apostol's weapon being different from his own. Cordevant then reached over and picked the gun up off the counter in order to examine it. Apostol instructed him to unload the weapon and Cordevant did so. He then held the weapon up to examine the sight and dry-fired it several times. Cordevant began to reload the gun when he saw a woman customer who had gotten out of her car and was approaching the office. Cordevant hurriedly attempted to pass the gun back to Apostol, at which time the gun went off and shot the plaintiff in the side.

At trial Darryl Briggs, manager of the Clark station, testified that Clark had a policy that guns were not permitted on the premises. Apostol frequently visited the station and would always be armed, whether on his way to and from work or while he was off-duty and dressed in civilian clothes. Briggs had never told Apostol to leave because he had a gun. Although he had told his employees not to let anyone in the office, he had let Apostol in himself and did not feel it was breaking company policy to have Apostol in the office when he was there. Apostol had been in the office while Briggs was there approximately 30 times in he 5 1/2 months before the accident. Briggs stated that he had never seen Apostol take his gun out and lay it on the counter and was not aware that he had done this.

Paul Apostol testified that he would visit the Clark station on his way to or from work from two to four times a week to do business and to visit friends. He had worked at the station before joining the police department, and both Briggs and Cordevant were good friends of his. He stated that he had been in the office at the station about 40 times in the 5 1/2 months before the shooting and that, during this time, he had taken his gun out and laid it on the counter 10 to 15 times. No one had ever told him he could not do this, although there had been occasions when he had had his gun out while Darryl Briggs was present.

Apostol stated that the Clark station was the only other public place besides the police station where he would take the gun out and lay it down. When asked why he would take his gun out at the Clark station, Apostol responded that he

"felt that the weapon would be safe sitting on the counter like that with people around I know. * * * I just had the weapon sitting there because there were friends around and it was locked off from the public."

Apostol noted that while the door was locked to the public and "customers would come up and deal through a cashier's window," in the case of friends, "with everybody knowing each other," Cordevant would unlock the door and let them in when they came to the station.

Lester Cordevant testified that he had worked at the Clark station almost two years prior to the accident. He was aware of the Clark policy that employees were not allowed to carry guns on the station premises, as this was included in the employment contract signed by Clark employees every three years. Cordevant himself had obtained a police commission to carry a gun after he had been robbed while working at the station approximately five months before the accident. There had been two armed robberies within a week of each other at that time. Cordevant carried a gun for his protection when he came into the station on Saturdays and Sundays to take money to the bank. Briggs was aware that he had obtained the commission and that he carried a gun with him to the station on weekends, and, although Briggs had warned him that this was dangerous, he had not forbidden him from doing so.

Cordevant testified further that, despite Clark's policy against having the public in the office, both Apostol and the plaintiff had been there many times and that Briggs had been present at least 30 times while Apostol was in the office. Cordevant explained that during the day while both he and Briggs were working, the door would be unlocked, and, instead of Apostol or "anybody that knows us" coming to the window to buy cigarettes, potato chips or candy, they would just come in. He stated, however, that Apostol would stay for "just a few seconds" and that "we don't allow people to be at the station to stay inside [sic]."

Cordevant testified that at the time of the shooting he had been in a hurry to hand Apostol's gun back to him because he did not want the woman customer who was approaching the window to see him with the gun in his hand. This was due to the company policy that customers should not see guns in the possession of attendants on duty. Cordevant stated that if there had been no customer approaching his window, he would have laid the gun back up on the counter.

Upon cross-examination later in the defendant's case, Briggs conceded that, as manager of the Clark station, he felt good about the security of the station when Apostol was on the premises with his gun because the ...


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