*1 CLAUDE J. MABE B.P. OIL CORPORATION 341, September Term,
[No. 1975.] April 14,
Decided 1976. *2 аrgued 21, The cause on November reargued 1975and 23, J., on March 1976 en banc before C. and Orth, Morton, Moylan, Powers, Gilbert, Menchine, Davidson, Moore, Melvin JJ. Lowe, Mason, Priest, Jr., W. with whom Parker and Gordon were
Peter brief, Page appellant. on for White, &Lentz the Davis, B. with whom were Whiteford, Taylor, Ford brief, Preston, appellee. & Trimble Johnston J., opinion of the Court. J., delivered Powers, Lowe, opinion page concurring at and filed concurs infra. dissenting opinion page at J., and filed dissents Melvin, 237infra. large portion the transactions of
“A by simple and carried on world is modern business gesture often A or look or means. word informal undertakings great or to to give to assent suffices machinery of complicated in motion set written, that Little, often, is said or commerce. legal consequences no with it a train carries little if the whole were definite than less certain being spoken words. This in or written included strenuously upon, and one insisted good faith is so party innocent to has led an conduct who his authority to appearance of another’s upon rely deny agency him, heard to will be act for many Hence it is that prejudice. party’s implied or agency is existence cases parties, or conduct the words presumed from of an this, too, although the creation contemplation.” their immediate not within rule that general may stated as a therefore be “It as his another held out person has whenever a capacity; given in a for him to act agent authorized knowingly permitted or has and without dissent capacity; such other to act as his such dealing where his habits and course of have been reasonably presumption such warrant agent, that such other was his authorized to act in capacity; in single whether it be transaction transactions, authority a series of to such capacity other to act for him in will be conclusively presumed, so far as it necessary protect rights persons of third who good have relied thereon faith and in the exercise prudence, reasonable and he will not be permitted deny agent, that such other was his do, authorized to do the act that he assumed to provided that such act is within the real or scope presumed authority.” Agency, (1st 1888). Mechem on 84. ed. §§ *3 Floyd Mechem, expressed These are the observations in R. 1888,in Agency. his classic work on He further in indicated necessity proving later edition that because of the reliance, application element of of the doctrine in tort cases was limited at best. upon appearances, however,
“Reliance does not ordinarily assault, slander, induce trespass, negligent injury, rare, and the cases any, must be if Mechem, which it could be an element.” supra, § 1914). (2d 724 ed.
That perhaps fitting observation was in context of the times century ago, over a half conformity before the demands of merchandising. national franchise subsequently There have developed “apparent refinеments to the agency” doctrine of and “agency by the related estoppel”, doctrine of but the — liability basis relatively unchanged remains that one by, responsible should be for, bound his assertions. apparent line of demarcation between
agency by estoppel always clear, is not Reserve Ins. Co. v. Duckett, 591, 600, 240 Md. require since both theories essentially the same elements: outward manifestation
“principal” agency relationship upon that an exists seeking reasonably the one to recover has relied.1 When invoking agency by however, estoppel, one must also show a change position by person the third such that it would be unjust purported principal deny for the his words or Restatement, 2d, Agency, 8, manifestations. Comment d. § agency by estoppel generally While is used tort actions apparent agency contract, actions based usage mandatory. is not
Although Maryland there is no dealing case law with the liability apрarent for tortious servants, acts of the definition adopted by the Appeals Court of to describe authority authority by estoppel in cases based on liability sufficiently contractual comprehensive is to include liability tort as general well. The principle was stated that Court in Hobdey Wilkinson, Md. 526.
“One knowingly permits who another to act for him though authorized, inducing persons third rely to their disadvantage seeming on the au- thority, estopped asserting later authority lack of apparent agency.” of his See also Duckett, supra, Reserve Ins. Co. v. at 600-601.The adopted by definition the American Law Institute Agency basically Second Restatement of the same as Maryland’s definition, language but utilizes associated with the law of torts: represents
“One who that another is his servant or development Unhappily terminology in 1. the overall misuse of the *4 agency Restatement, may wrong legal road. The lead a researcher down the doctrine clarify 2d, helрs Agency, the terms: Comment e some of § “ meaning apparent authority entirely from . . . has an different merely implied authority. inferred or The latter terms are created, descriptive way authority whereas in which is authority. apparent authority necessarily with is not coincidental authority implied fact, apparent generally is inferred or principal persons, it is and hence manifestations of the to third authority speak implied apparent in most correct to of the situations where or inferred authority apparent exists. Ostensible authority merely synonym authority apparent and is so for by many used courts.” person third thereby causes a agent and other of such or skill upon the care rely justifiably liability the third subject to agent is apparent of care skill the lack harm caused person for a servant other appearing to be of the one 2d, Restatement, 267. Agency, § he were such.” as if example of appeal presents a classic on us The case before authority. liability It based giving rise facts —law briefly reviewed we have reason this proper viewed those facts recital of that our context. Case Before Us driving that, with while J. Mabe testified
Claude City, they their noticed that in Baltimore father and brother gas water. needed both automobile gasoline you Now, you say needed “Q pulled into where? You water? filling BP station.
A Hilton gas any in that same stations Q Were there area? Yes,
A sir. they?
Q Where were left-hand side and A was an Exxon on the There — up up just the street little Gulf station farther. you Why BP
Q did choose the station? always buy always gasoline, I deal A Because BP. with you
Q Had dealt with BP before? Yes, up on 29th A Street Greenmount right around the corner from Avenue. I[t] where lived at.
Q you with them? How often had dealt dealing A I had been with them for around about year at that time. *5 — Q anything you Was in particular there you attracted to the BP station on Hilton Street? Nothing except A station, for BP had BP signs, gas, pumps. BP
Q any sign up Was there anything that said being operated by anybody about other than BP? No,A sir.
Q Now, you station, when drove into the what thing was the happened? first Well, A the car was on hot so I asked the man for, you know, put water to in the radiator and he handed me a thought container which I was water he, apparently. so did
Q you Can describe container? regular A a spout It was can water with a on it. Q you And what did do then? hood, put
A I raised the it in the radiator and it down in up went the radiator and came back exploded.” went on the motor and then presumably gasoline can was filled with or some equally liquid. injury sustained, volatile As a result anof Corporation Claude J. (B.P.). jury Mabe sued the B.P. Oil A Superior City of the Court Baltimore a returned verdict his favor and damages. judge awarded $2800 The trial subsequently granted judgment B.P.’s motion n.o.v. and denied Mabe’s a motion for new trial which he had filed monetary because of dissatisfaction with the size of the brought present appeal award. Mabe from the finаl judgment (n.o.v.), arguing that there was sufficient evidence provide jury question, either of the existence agency relationship actual between B.P. and the station operator, or of an based on manifestations by B.P., upon appellant thereof relied. granting appellee’s judgment
As motion for a n.o.v. was, in effect, granting previous of its motion for verdict, directed we must determine whether the evidence and the proper reasonable and inferences to be drawn require therefrom were sufficient the submission of the jury. issue to the Express, Lewis v. Accelerated 219 Md. *6 so, doing
255. In we must “resolve all conflicts in the in of evidence favor the and must assume the truth may naturally of all evidence and inferences as and legitimately support be deduced therefrom which tend to the — right is, plaintiff’s to recover the evidence must be light [appellant viewed in the most favorable to Mabe].” 400, 405; Bernfeld, Hagan 226 Md. Smith v. v. Wash. Sub. Comm’n, App. 20 Md. San. 192. disputes negligence
Neither side the of the station Thus, attendant who handed Mr. Mabe the water can. we only question will treat here the of there whether was provide jury question sufficient evidence to as to the agency relationship existence of an between B.P. and the operator of the station. Principal the
Manifestations principal responsible apparent To hold an for acts of an apparent agent, necessary something it is to show more than holding appearance a mere out the of an relationship. principal of such a It must be shown that knew, known, agency relationship or should have being espoused and, having knowledge, was so such condoned, putative principal permitted, encouraged, compelled constrained its continuance. There was retained, through B.P. evidence the case at bar that arrangement, substantial, convoluted lease overt and subtle advertising physical appearance сontrols over the leases, Hilton Street In addition to the which were station. evidence, testimony B.P. admitted into how, which, representative explained and the extent rights retained B.P. the leases were exercised. showed, only knowledge, produced
evidence so encouragement prominent display of the B.P. other manifestations of control over the trademark agreement2 dealer station. The various leases and the Corporation assignee purchaser 2. these B.P. agreements “Arco, who, turn, purchased from had Atlantic-Richfield”] Refining Company. them from the Sinclair
were introduced into evidence further demonstrated that tight B.P. assumed control of the business activities appellant. See, e.g., Singleton v. Dairy Queen, International Inc., (Del.). A. 2d 160 Realty Company
Benkert gasoline the owner property. originally station It had property leased one predecessors of B.P.’s (all interest of whom we shall collectively hereafter refer to company) the oil for whom Lonnie worked Upon Faison as a station attendant. expiration company, of that lease to the oil arrangement developed whereby premises Faison leased the part transaction, Benkert. As of the same Faison then leased premises company immediately to the oil who leased it back to At Faison. the time of these simultaneous transactions, Faison also entered into a “Dealer’s Agreement” company with the oil which was a franchise *7 agreement tires, sell to batteries and accessories. The rental agreements for paid through both lease was determined and purchase and gasoline, sale of which was controlled by purchase requirement a minimum in the “Dealer’s Agreement.” gallon gasoline purchased For each of company, pay from the oil Faison would him two cents as pay its rental for lease Faison. Faison would to from cоmpany per gallon oil one-half cent as rent under its lease to Faison. agreements myriad clauses,
The leases and the contain among appellee’s which are some relevant to the issue of representations agent. that Faison was its A lease covenant required Faison as lessee:
“ promote diligently gasoline, ... the sale of to tires, petroleum products, batteries, merchandise, keep accessories and and to open station for properly business and illu- . . .” minated. accomplished promotion products by use
The of B.P consisting green of of a B.P. trademark those letters colored yellow according which, testimony, and was exhibited and night,” “great big sign hung on a beautiful lit at at except Corporation. signs B.P. B.P. No but owned station Moreover, premises.3 B.P. trademark signs were on the “ pumps and on the emblazened ... on the oil cans was also .”, including everything . appellee . also owned] [which permitted, if not uniform. The lessee was the attendant’s equipment adapt to all of his encouraged, to that trademark including vehicles used at the station. lessee, Faison, permitted premises was not
The use the major repairs motor vehicles any or maintenance of B.P., permission nor was he express written without any sign, fixture or device to the station permitted to affix agreement required prior dealer’s consent. The without gasoline quantities minimum purchase annual Faison to heating oils, test), kerosene, motor regular high (both tires, purchase The batteries oils and anti-freeze. for, required, provided but not under
other accessories agreement. another right entry for B.P. lease reserved purpose employees
representatives, agents and for the this was inspection. It was testified that examination and periodically representative who would carried out a sales stock, check — if he is
“Also, help dealer as far as the it, making go give him having problems do, perhaps should suggestions as to what he what if check to see improve the business and work, pump may be repair like a anything is in necessary me working. to call It [an or a mechanic administrative assistant] *8 something nature.” of that provisions was termination enforcing the lease
The means of company Presumably “suggestions” of the for breach. required display company 3. The lease from the oil to Faison Faison sign indicating continuously he was the on the exterior of the station a testimony affirmatively that no sole owner of the business. The such out constructively, indicates right inspection, sign displayed. and carried was B.P.’s of examination actually knowledge, representative, its sales afforded them the sign present, responsibility was that no such chargeable to them. 230
representative could ever-present be enforced threat of non-renewal of the operator lease from B.P. to the at its terminatiоn.4 representations by sign, emblem, etc., addition to the at proper,
the station the B.P. was trademark used national regional campaigns and sales in advertising and on periodicals. yellow television and There was also in the pages telephone of the Baltimore a “BP book column and under it all were these addresses.” Promotional [station] gimmicks types flags such the sale of certain glasses were also at carried on some B.P. stations.
We think that the cumulative effect this evidence of the imprimatur ownership, intentionally purposefully public’s patronage, exhibited to attract the was sufficient to generate jury issue as to the “outward manifestations” apparent agency. element of language Restatement,
In the Agency, 2d, §27: “ apparent authority . . . to do an act is created as person by to a spoken any third written or words or principal which, other reasonably conduct of the interpreted, person causes third to believe that principal consents to act have the done person purporting behalf act for him.” jurisdictions Courts of have found similar agency manifestations indicative apparent relationship. In Gentry, Standard Oil Co. 1 So. 2d v. (Ala.), it held sign that such manifestations as “[t]he public, office, exhibited to the license exhibited in telephone city directory,” both the were sufficient for a jury question. Crane, Union Oil of California (Ala.) stronger” 258 So. 2d found “even facts than “thq facts in [Gentry] pertaining holding to a out that this station,” company oil the facts that there was a relationship enough provided 4. This over the have B.P. with control operator agency two. an actual between the We do station create issue, however, reach there was not sufficient we concluded that since have jury’s support of an verdict. evidence
231 indicating station, large sign station was a Pure Oil many products, Oil and the service the station sold Pure operator Oil uniform. See also station wore Pure (N.M.); Sutton, P. 2d Company v. 1283 Gizzi Chevron Oil 308; Texaco, Inc., 222 Texaco, Inc., 437 F. 2d v. Clark 1974). (Mich. App. N.W.2d 52 consequence holding
It no that the one is of Restatement, authority may know he has it. (Faison) not 2d, consequence a. Nor is it of that the Agency, §8, Comment directly principal representations of the were made Mabe alone. principal may be made
“The manifestation person, or directly a third made to community, by signs, by advertising, by authorized, he authorizing state that continuously employing agent.” Re- 2d, §8, statement, Agency, Comment b. Faison,
Here, ample individual was evidence that there ostentation of person, so obscured business nothing appeared to be advertising that he B.P.’s trademark servant. more than B.P.’s
Reliance testimony of Claude J. Mabe heretofore set forth upon B.P. exhibits evidence of sufficient reliance that, representations rep- to indicate those resentations, patronized he would have another more Thus, there evidence that he acted to convenient station. station, by bypassing where we must detriment occurred, in negligent assume no act would have reliance appellee. held But the the manifestations of out testimony Presumably to meet went even farther. proof prerequisite for the third reasonable Mabe) rely person (Claude representations, J. on the c, Restatement, 2d, appellant’s Agency, §8, Comment objection: testified brother without “Q you did this was a How ascertain that station? Well, before, normally
A like I said as we deal My with BP. brother deals at it because he lives *10 right large sign around the corner. There BP was pole hanging right gas on the over the station. signs, There was a numerous amount BP BP cans. The service attendant was dressed in BP — clothes, hat, green jacket, signs with BP on it know, you him. And nothing, we had no idea of it BP normally wasn’t a station because like we deal BP at and if we know that wasn’t owned and operated by management, probably wouldn’t even have went there because we like their service things of that sort.
Q display Was there a of BP oil? Yes, A there gas is, was. On the island where the display there is a of BP cans of oil and stuff like that.
Q you gas Did see another nearby? station Yes, A directly there was a Exxon across the street which would have been more convenient for pull us to into than the BP because we did have to cross traffic and at that time our car was on hot and it logical would have been more go for us to Exxon since our hot, car was on knowing we deal BP normally get at and we the service that go for, we in and ask we wait until traffic cleared go for us to across the gas street to the BP station.” He also indicated that he associated certain colors with the Corporation: B.P. yellow
“Green and is the colors BP has.” Appellant’s testimony father’s also went to the appellant’s reasonableness of reliance on the operation of the station B.P.:
“Q And there any question wasn’t your mind, there, that it was a BP station? No, sir, A question there’s no in the world right they signs and I because had their out deal BP, Brooklyn BP, they give today because me with good there, Brooklyn, right goI now and service and —my do I trade with them.” generated
Thus, of Mabe’sreliance sufficient evidence was for that element to be on B.P.’s manifestations presented jury jury to the and it was for the to decide whether reliance was reasonable. such
Conclusion Recognizing testimony much of the contradicted by appellee, hardly elementary we can conceive more showing representation of sufficient evidence of and reliance provide jury question. It is not our role to believe or only disbelieve the evidence. We find clearly that there was enough jury consider, believed, evidence for a if *11 Corporation represented decide that B.P. operator that the agent, thereby causing of the station was its servant or justifiably rely upon J. Claude Mabe to the care and skill of apparent agent, subjecting such liability it to to Mabe for harm caused appearing lack of care or skill of the one to be a or servant as if he were such. Restatement, 2d, Agency, §267,supra. recognize significance
We well
of this result. We are
traditionally
companies
aware also that
oil
have been
protected
liability
by reciprocal
from
leases
agreements
simultaneous
provided
dealer
which have
a
company
“independent” operator
moat between the
and its
bridged by
agency, express
which could not be
actual
implied.5
apparent agency
The use of
to ford that moat is at
“emerging doctrine”, Comment,
best an
Liability
Oil
Torts,
915,
Its
1965Ill.L.F.
and is not
Lessee's
always accepted by
See,
courts
has
when it
been offered.
e.g.,
Company,
Sherman v. Texas
916,
165 N.E.2d
917
(Mass.);
(Iowa)
Reynolds Skelly
Co.,
v.
Oil
“To hold it would mean franchise product dealer would allow his to remain on the premises individual, of an let the individual use his 6. instructed: The cоurt “Now, you that the service if find from the evidence should signs, implements, question displayed sufficient station designation uniforms, products, the such station were from the evidence service station type his prior reasonable items of BP such and other appearance wrongfully plaintiff from the would assume operators of and that the that it was under the control you Corporation; agents if further find BP Oil or servants of designated with BP dealt they past, frequency in the were with some on which he had come reasonably rely because of station operations familiarity general with their satisfaction plaintiffs occasions, you entertained and if find that the uniformity general expectation that there would designated quality stations, was induced to enter respect products and service all *12 you find from the evidence and if further question because the station — general public and and Corporation as station out to held such control, appeаrance gave a station under its of it the outward holding upon plaintiffs out you such reliance if further find general was reasonable under appearance and such testimony taking and all all the into consideration circumstances; the evidence case, be then such facts in this sufficient operating your finding said station
justify Faison was that Lonnie Corporation, defendant, BP Oil of the as its or servant tending you show, contractual regardless evidence whether there is find of must so Faison, actually a there is not BP and Lonnie as between agent.” relationship principal of advertising, emblems, national cetera, et that this act in itself agency by would estoppel, create an every which would mean dealer, nationwide para- advertising they put the minute their phernalia be in a would mercantile business subjecting himself to suit. I don’t think this is the intention of the law.”
That, course, is misleading oversimplification. of There in advertising a vast difference as a franchise dealer that products certain are premises, available on the advertising producer by the corporation as if the national product whose under name the responsible is retailed is for operation the safe of its retail outlets.7 The facts of this case overtly represented show that B.P. principal itself as the of operator of every the station almost known advertising technique any to the total exclusion of indication by anyone only control else. it Not did see to it that their recognizable uniformly colors and trademark were visible throughout station, during periodic made no effort inspections of the station to make sure that the actual independent operator relationship public. was made All of product, and, this was done to enhance the sales its having profited thereby, decry hardly can responsibility B.P. corporation ostensibly Where therefor. has held itself out public operator stаtion, public service policy requires responsibility that it simply bear the for quality product, proper of its and safe delivery as well. Damage
Insufficient Award appellant argues also judge that the trial erred in not granting a ground new trial on the that the $2800.00 substantially less than damages proven by appellant. In Parks, White v. 154 Md. explained it was that: 195, only given weight “The size a verdict can fact, petroleum 7. In it has been held that franchisers other than products may authority. be held liable for torts their franchisees based Singleton Dairy Queen, Inc., supra. See International
236 comparatively restricted class of in a court
this where, rulings in the cases, legal error is found of if necessary court, to consider if becomes trial it the injury judgment indicative of of the amount appellant.” legal error, In the we the case here. absence of Such is not jury guess what a chooses to believe disbelieve. not 90, Appeals Armstrong, Rephann 217 Md. of The Court 93, it clear that: made never size of verdict a matter for
“Almost is the a by a this Thе trial court refused review Court.... ground sought that the verdicts new trial on excessive, right, were it is our function so, pass disposed we to do on his action even were ” added). respect. (Emphasis in this denying of the trial court was not abused The discretion 206; Smith, Trails, 222 Md. Safeway a trial. Inc. v. new Md. Schulenberg, 33 Sauer v. a, judgment we that Md. Rule 1075 shall enter
Under by the ought to have been entered court below.
Judgment reversed. Judgment entered favor $2800 Mabe J. Claude date interest with and costs. verdict appellee. paid to be Costs Powers, J., concurring: opinion Judge Lowe for this written Court
reversing judgment Superior Court Baltimore City, applied aspect we have of the law acts, permits finding party, its own has made reasonably appear with whom he deals to another that one creating party appearance. fully opinion, I as well as in the result. concur with ruling in this is to What the Court’s case does hold permit sufficient to admitted at the trial was evidence law, acts of jury, properly to find that the instructed *14 Corporation reasonably appear to Mr. Mabe B.P. Oil made it serving here customers at the station that the individuals Corporation. I agents of that see involved were long recognized reasoning opinion departure no of the principles of law. may judicially notice certain facts of common
Courts holding knowledge, judges must be to avoid careful affairs, personal knowledge, especially of their business knowledge by public generally equivalent of common ways management. I unsophisticated in the of business able, very average would be much that the individual doubt party legal specificity, name to a contract with hamburger, gasoline, a muffler buys he a tank of car, car, prepared, or rents a or has his tax return a motel room. clear, undoubtedly quite
The reason is arises from respect judgment. With sound and effective business message products is broadcast far countless or services the service) any Buy product (or at of our and wide: our use оur identity projected many places is the name of business. product service, if identity of the or the to the virtual not the exclusion of all others. absolute promotion successful, policy identity
When such a place of business its and a customer is attracted to name, simple identifying signs, symbols, justice entitles appearances, he the customer to show that from those reasonably thought doing company he was business with the identity projected. whose was so
Melvin, J., dissenting: concluding judge wrong in granting that the trial n.o.v., judgment I majority
defendant’s motion for think the misapplied principles well has established of the law of I, therefore, evidence in to the this case. with due respect, my and state dissent reasons. LAW
I. THE A. plaintiff, April 1973, by filed
The declaration Corporation Mabe, against B. P. Oil and Lonnie J. Claude Station, alleged Faison, trading Service that the as Faison owned and under the direction of the “service station [was] operated defendant, Corporation and B. P. Oil only legal Faison . . . .” It is therefore clear that Lonnie upon by against B. P. theory relied to recover Company”) Corporation (hereafter sometimes called “the Oil superior. alleged respondeat It is not is the doctrine of Faison, Company negligent employing employees known that Faison or his knew or should have danger public, were or a to the that the unskilled premises in negligently failed to maintain the a safe directly any condition, other manner breached or that it *15 plaintiff. The here any duty it to the sole issue is the owed responsibility negligence Company’s for the of Faison’s gasoline employee handing in to the a can of instead of water. agree
“. All the rule of . . of the authorities respondeat superior, requires which person one to another, for the acts of arises from the answer principal only It and subordinate. relation of servant, applies the relation master and when of principal agent employеr employee or is wrongdoer between the and the shown exist charged person sought the result to be for of virongdoer wrong. apply when the is It does contractor, though independent there be an even agreement ‘arrangement’ between him and responsible person claimed to be who is Roberts, 69, 78, wrong. 216 Md. Greer Lines Co. Mechem, Agency (2d Ed.), 235; Section 139 A. 2d 2 Hanline, (1959). 421 Hoerr v. 219 Md. 1858.” (Emphasis added.)
Thus, plaintiff to a motion for directed for the survive at evidence, appear verdict the close of the there in must legally record jury reasonably sufficient evidence for the agency relationship conclude that an existed between the relationship and Faison. Unless such a there exists predicate application is no for the of of the doctrine superior respondeat impose liability upon vicarious Company.
B parties by appeal correctly to this have their briefs Both only major agency types assumed there are two descriptive relationship, way in both which the agency. relationship type is The first is an actual An created. agency may ways: expressly actual be created in two implication. express agency express Thus an is formed agreement, implied agency An agency oral or written. is an justify created inference from facts sufficient implied agency may inference. An be in said to exist even agreement parties the face of a written or oral between agency key does here that an not exist. The factor seems to right party day-to-day operations be the of one to control the party subject of the the conduct matter dispute. agency, descriptive type way
The second relationship formed, by estoppel. the Paradoxically, is agency type
this
presupposes
purposes
relationship"
opinion
“agency
1. Por
of this
the term
broadly
only
relationship
principal-agent
usеd
master-servant
be
to include not
employer-empioyee relationships
as well. It should
noted, however,
legal contemplation
in
who is not a servant
the distinction between a
“may
and an
important
servant
determining
*16
liability
employer
an
the
of
for a tortious act of his
(A.
employee”.
Noppenberger,
(1937));
& P. Co. v.
non-existence agency, actual express implied. either or “apparent” It agency is sometimes called or “ostensible” agency and in predicate is said to to exist order serve aas for application respondeat of the superior doctrine of those situations which it is inequitable considered to permit “principal” deny agency relationship to that an escape really liability exists and thus for the tortious acts of “agent”. agree I majority opinion with 267 of the § Law, Restatement 2d Agency (1958) sets forth general proof necessary the elements of agency to establish by estoppel: represents
“One who that another is his or servant agent thereby party other causes a third upon justifiably rely to the care or skill of such apparent agent subject liability third person harm caused the lack of care or skill appearing of the one to be other a servant or if he were such.” appear would It therefore order to hold thе negligence liable for Faison’s on the basis of estoppel agency by apparent agency, record must legally jury contain sufficient evidence from which the could reasonably have concluded that: 1) “represented” The Company that Faison was its agent;
servant or 2) thereby “representation” Such appellant caused upon
justifiably rely Faison’s care or skill. II. APPLICATION TO OF LAW THE EVIDENCE The majority holding rests its on decision legally evidence jury sufficient for a to conclude that an “apparent agency” agency by estoppel I disagree. existed. Representation
A. Agency Relationship In order going for the that in show to Faison’s gas “representations” station he relied of an *17 relationship, must, there course, of be evidence he had alleged knowledge of representations at the time he Obviously claims to have relied on them. rely one can not on something of knowledge. which he has case, no In this therefore, the inquiry “reрresentations” is: what Company plaintiff Faison was the aware of when he decided drive “Hilltop his car into the B P filling station”? only bearing
The question evidence in record on this is in plaintiff’s testimony contained in set forth opinion: majority — anything particular
“Q Was there you you BP attracted to the station on Hilton Street? Nothing except
A station, the BP had BP signs, gas, BP pumps. sign
Q any up Was there anything that said being operated by anybody about other BP? than No,A sir.” majority
The relies other evidence in the record indicating that “the B.P. trademark was used national regional and campaigns advertising sales in television periodicals” support and in its view “manifestations principal” agency relationship an between the my view, evidence, In Faison. this such as it is, completely is irrelevant to the issue to be decided. place, gossamer
first there is even a of evidence as to the advertising. Presumably, promoted content of the sale — products any of “BP” just as the sale of other brand name product might promoted, e.g., “Ivory” soap. In the second place, no there likewise evidence whatever that any knowledge of, upon, had any much less relied advertising. such
Thus, only “representations” relevant to the issue of estoppel.m agency by signs this case are the and distinctive filling premises. weight colors on station authority display jurisdictions is that standing alone, emblems, colors distinctive representation insufficient evidence relationship company-lessor between an oil and an *18 operator-lessee gasoline A leading of a service station. case Esau, Okla., 1963, 815, on the issue is Coev. 377 P. 2d where it is stated: general tenancy may rule that
“It be stated as not render the landlord liable for alone will mere fact of of his tenant. Neither torts goods property marketed ownership of nor that of mark or trade name the landlord under the trade premises upon the demised are and sold advertised that the to raise an inference is deemed sufficient employee of the is the tenant-vendor cases). is indeed a matter It (Citing landlord. knowledge practice that distinctive common signs displayed are at trade mark colors and independent dealers gasoline stations signs suppliers. product These petroleum to the represent more than notice no emblems being company’s products are given motorist that supplied.) ’’(Emphasis the station. marketed at Company, 1960, 165 v. Texas Mass. Sherman See also company 916, verdict for the oil where a directed N.E.2d plaintiff sought to hold the oil where the affirmed a case employee of injuries caused company-lessor liable theory station on operator-lessee of service Supreme Judicial Court of agency”. The “ostensible said, 917: at Massachusetts signs was representation of the rule that
“We gasoline was Texaco that to the statement confined agree statement with the We sold аt the station. 171, 163, Co., 287 Skelly 227 Iowa Reynolds Oil v. of common 827, a matter 823, ‘is N.W. signs are knowledge these trademark ” independent dealers.’ displayed ... 1966, Company, Oil Ill. 222 N.E.2d In Crittendon State liability company 561, of an oil another case which tort
243 sought theory agency by estoppel, on the Appellate Court of Illinois said: signs might
“The alone indicate that this service products, station sold State either to the exclusion of, preference to, competitive or in brands. carry
There which service stations on their premises only particular the name of a line of gasoline products they However, and oil sell. prominent display we do not believe that symbol alone, such brand name would necessarily assumption warrant such being operated service station was as an symbol. the owner of the brand name or See: Trust Chicago Co., Co. of v. Sutherland Hotel 389 Ill.
72, 73,
(1945).”
N.E.2d
*19
Apple
Oil,
al,
v. Standard
Supp.
See also
et
F.
307
107
1969)
(N.D.
Corporation,
Calif.
and Manis v.
Oil
185
Gulf
1971).
(Ga.
S.E.2d 589
(1971),
Texaco, Inc.,
In
Indeed,
is concerned there is not a whit
so far as this record
B. P.
plaintiff had ever heard of the
Oil
evidence that the
circumstances, my view,
In the
Corporation.
this is not
Corporation
asserting
enough
estop
P. Oil
the B.
independent
truth,
being
was an
con
the truth
that Faison
day-to-day control
it exercised no
tractor over whom
agree
appellate
filling
I
with the
operation of the
station.2
Reynolds
Skelly
Oil
of Iowa which said
Com
court
(1939),
pany,
“Under these displayed gasoline station sold defendant’s ‘holding signs would not constitute a defendant’s Apple lessee-operator was defen- out’ to that the Apple reasonably upon dant’s or that relied any representations defendant.” *20 cited, I the mere would hold that Based on the authorities Company permitted signs and distinctive fact that the premises legally displayed on is to be the emblems representation of a that Faison was its insufficient evidence (Ala. 1941), Gentry, 1 2d 29 cited 2. So. See Standard Oil Co. 1959) holdings Sinclair, (5th majority, facts similar implied. 268 F. 2d. 114 Cir. and Miller v. judice agency, express or there was no actual to case sub that discussed for similar ALR 2d. 1296 and cases there See also 83 holdings. agent certainly and enough estop not to Company showing, has, as it that there was in agency fact no relationship, express implied, between it and Faison.
B. Justifiable Reliance The majority testimony asserts that of Claude J. “[t]he Mabe heretofore set forth exhibits evidence of sufficient P. upon the B. representations reliance that, to indicate representations, for those patronized he would have another more said, convenient I only station”. As have evidence in this any “representations” record of made Company that were known to Claude J. Mabe concerns the sign symbols. “BP” and Therefore, may that is all he arguably upon claim to support have relied to his contention estopped that deny to that Faison was its agent employee at the time negligent. Faison’s
Assuming, arguendo, sign symbols “represented” that Faison was an of the B. P. Oil Corporation, upon plaintiff produce was incumbent to legally sufficient “thereby” evidence that he was caused to rely upon to his detriment the care or skill of Faison. I would agree jury reasonably could conclude that “but for” large sign “BP” plaintiff would not have driven into Faison’s station. I agree would further that when the plaintiff patronize station, decided to right he had a to expect operated that whoever the station would not cause through him harm tortious conduct. To that extent it be placed “justifiable said that he upon reliance” Faison’s care — just any or skill any customer of other business would expect by negligent harmed proprietor. acts of the But say, that is not in the context the law estoppel, necessarily sign that it was symbols in this case that rely upon “caused” the Faison’s care or skill. Expecting proprietor from the care and skill of a commercial public business that being caters is not the same as rely upon expectation by representations “caused” to proprietor’s principal” proprietor “ostensible that the “agent”. estoppel To work an there must be a causal representations connection between the *21 upon representations. reliance those To establish causal claiming person be evidence from the connection there must representations upon relied the that to have tends show why otherwise, claims; the fact finder would have no he so determining plaintiff rely really upon did for that the basis skill, “agent’s” care or or that the claimed reliance the plaintiff justifiable. If evidence fails to show that the upon “agent’s” care or if the relied at all or skill reasons “principal’s” given reliance are unrelated to the for such agree) I representations agency, (with set the test establishing agency by majority for forth by estoppel has not been met. case, testimony, plaintiff In went to this own solely gasoline he gas “needed station because filling BP . .. He said he chose the “Hilton station water”. [bjecause buy gasoline, always BP with BP”. always I deal statement, explanation my opinion, without some that why “always why “always buy[s] gasoline” he he he, BP”, only like with is evidence of the fact deal[s] motorists, of other had become accustomed thousands gasoline, i.e., only using particular “B.P.” The brand of one why plaintiff “always explanation in record of this testimony in the of his brother with “BP” found deal[s]” plaintiff] deals at it “My brother [BP] who testified: [the referring He was right the corner”. because he lives around Thus, plaintiffs home. “BP” station near to another simply with” BP as a explanation plaintiff “dealt is that the any simply no evidence of There is of convenience. matter BP”. The “always deals with other reason concerned, utterly plaintiff is given, so this far as reason P. by the B. Oil any “representation” unrelated to agent. its Corporation Faison was majority’s assertion that Finally, would I observe ostensibly corporation has held itself out “[w]here policy station, public operator of a service public as the simрly for responsibility not requires that it bear the delivery as product, proper and safe for quality of its dictum, holding, interpreted albeit well”, could be liability” product theory “strict tort legal that the liability applied cases should somehow be to the doctrine of *22 agency by estoppel. noted, It however, should be Appeals not, yet, Court of “has rejected accepted either liability’ theory the ‘strict set 2d, forth Restatement Torts, 402A, type in the might of case where that section § logically applied”. be Corp., Frericks v. General Motors Moreover, Md. quoted 298. the above assertion the majority establishing seems to a different test for the Company’s liability espoused than that beginning at the — opinion only one that would require half of the two prong test set forth 267 of the Agency, Restatement of § regard “justifiable prong without reliance” of that “public policy presented test. Such test” neither below argued appeal. my opinion, nor on this the Court should ex motu. not now consider mero Rule 1085. judgment
I would affirm the of the trial court. QUINN, MARIE ELLEN a minor, al. etc., et JOHN GILBERT GLACKIN 828, September Term, [No. 1975.] April 14,
Decided 1976.