*1 of the circuit court Accordingly, we reverse the order the South Carolina Rules of direction that remand with the proceedings further this govern all Procedure shall Civil case. and remanded.

Reversed JJ., concur. Goolsby, Cureton WATKINS, Lloyd Respondent T. v. MOBIL OIL CORPORATION and John Appellant. McCampbell, Corporation of which Mobil Oil

(352 (2d) 284) Appeals Court of *2 Daniel, Columbia, & J. Reese Daniel of Daniel for appellant. Mullis, Jr., Lundberg, Columbia, J. and CarlN. Marvin for respondent. Sept. Heard 1986.

Decided Dec. 1986. Judge:

Goolsby, Lloyd brought against appellant Watkins suit Mobil Corporation McCampbell T. alleging and John causes of battery prosecution. action for assault and and for malicious The causes of action arose out of incident that occurred gasoline operated by at a station Inc. alleged complaint McCampbell Watkins his amended “agent, servant, employee.” was Mobil’s Mobil denied jury that he was so in its amended answer. The returned a against verdict in Watkins’ favor both Mobil and Mc- Campbell punitive for damages. appeals actual and judge grant the failure of the trial for motions directed judgment verdict and notwithstanding the verdict. dispositive issue in this case is whether Watkins McCampbell, employee established that Oper- of Station ators, “agent, servant, employee.” was Mobil’s

We examine the prin accordance ciples judgment that a appeal must be affirmed on *3 any where there is support evidence to the factual findings implicit jury’s in the party verdict and that opposing the motions for judgment directed verdict and notwithstanding the verdict is entitled to all in favorable ferences where the evidence is conflicting. Hilton Head Is Realty, Club, Inc. v. Skull land Creek 339 S. E. (Ct. App. 1986). p.m. Sometime between 10:00 and September 10:30 on went to the Watkins North Main Mobil Oil Station Highway and U. S. County. near Interstate-20 21 in Richland purchase “to pack intended a cigarettes.” Watkins He North Main Mobil went to because it was the “closest station particular that sold brand across the [his house] [his] counter.” opened station, man, he the door to

As enter the a later McCampbell, identified as slammed the door on Watkins’ grabbed the open door good hand. Watkins with his hand. explanation McCampbell saying, from He demanded wrong you?” “Hey, with what’s responded, place McCampbell “This is closed.” remarked, “Well, you picked way Watkins then a hell of a to tell me it was closed.” remark, hearing cursed, McCampbell

On Watkins’ went counter, got gun. behind the a He advanced toward gun. Watkins with the Watkins feared for his life. manager stopped McCampbell

The station and tussled gun. McCampbell, him over the who was the assistant station, manager manager in shot the station struggle gun. for the days later,

Several two officers arrested Watkins on a charging having trespassed upon warrant Watkins with premises Main ... after he of “North was told the McCampbell’s supported closed.” affidavit store was they warrant. He secured the warrant “because him” to told do so.

The Watkins officers took handcuffed to the Richland County fingerprinted, photographed, Jail where he was magistrate trespassing incarcerated. A later dismissed the charge. Operators

Station ran Mobil stations in all the Columbia employed McCampbell paid salary. area. It sign operated by No identified the station as one however, Operators; sign topped a Mobil the station and the appeared gasoline pumps. word “Mobil” the station’s manager jacket station wore a that exhibited the Mobil emblem.

I. We first address the the evidence was whether support finding sufficient of actual determining The decisive test in relation whether the purported of master and servant exists is whether the right power master has the or control direct and performance the servant of his work and manner which the work is to done. Keitz v. be National *4 Paving Co., 479, (2d) (1957); 214 Md. 134 A. 296 see Fer Thigpen, 140, 144, 424, (2d) E. 426 nander v. 293 S. (1982) (“The test determine is whether or not the right purported principal has to control the conduct alleged agent.”) Young Warr, (Emphasis theirs); 252 v. 179, 189, 165 (2d) 797, E. (1969) (“The general S. C. 802 test applied right authority ... is whether there exists the and undertaking, particular and direct the work or as to control DeBerry accomplishment.”); v. manner or means of its 66 114, 307-08, 108 (2d) 304, Freight Lines, C. 234 S.

Coker by power of control retained right or (1959) (“The 116 uniformly being re is done is the work person for whom determining whether criterion for the essential garded employee----”). is the workman Mobil as Here, no evidence whatever that there is opera Operators’ any right to control Station serted including McCampbell. employees, Absent or its tions Operators any that Station from the record also any agree premises Mobil or had sort from leased company. as the record before us So far ment with the oil op reveals, the station’s Operators alone controlled erations, premises. employees, and the station’s

Indeed, nothing than that Sta evidence shows more gasoline, permitted employee Operators sold Mobil’s tion emblem, displayed clothing exhibiting Mobil’s to wear pumps. display on its atop its station and name Mobil’s merely represented to and its emblem signs of Mobil marketed Mobil’s the station and others motorists Esau, (2d) (Okla. 1963). P. products. Coe v. right Mobil’s to control the some evidence of Without business, insuf- Operators’ the evidence is of Station conduct that a master-servant rela- warrant the conclusion ficient tionship between Mobil and Station existed McCampbell’s rendering liable for actions. thereby Co., (2d) 71 A. D. Y. Service Oil 418 N. v. Cities Price Corp., App. Oil 124 Ga. (1979); see Manis v. (2d) 488 Gulf (1971) (evidence operator (2d) that a station E. 185 S. company’s products, sold an oil allowed its advertised uniform, company’s accepted employees to wear the company’s cards held insufficient to create an the oil credit operator company’s that the station was the oil issue of fact agent). therefore,

Watkins, failed to establish B. P. actual Corp. Mabe, (1977); 279 Md. 370 A. cf. Thigpen, supra (a genuine Fernander issue of material concerning agency relationship exist held to whether an fact between restaurant franchisor its franchisee existed employees thought they worked for the franchisee’s where franchisor, displayed the restaurant the franchisor’s uniforms, napkins, the franchisor’s and ad- signs and used

67 vertising, and the agreement franchise showed the fran- right chisor retained the operations control the detailed tq franchisee, including management employees); of Sutton, Chevron Oil Co. v. 85 N. (2d) M. 515 P. (1973)(a genuine issue material fact held to exist concern- ing company whether an oil asserted sufficient control over operator a station so as to create a master-servant rela- tionship where operator the station company’s was the oil lessee and the evidence operator showed the station required, among things, other promote the sale of the oil company’s products, promote brand company’s the oil im- age, open and designated remain at times and the evidence also operator showed the station gasoline sold pro- and oil vided company the oil and received the benefit of the oil company’s advertising, the operator station wore a uniform displaying the company’s emblem, and the oper- station ator’s customers were allowed to charge purchases of both products repairs company’s the oil card). credit

II. We next address the of whether the evidence was support sufficient to finding apparent agency. apparent

To establish agency, enough it simply is not prove purported principal either affir mative conduct or voluntary conscious and inaction represented has another to be agent party A or servant. prove must also upon reliance representation and a change position to his detriment in repre reliance on the Programs ZIV TV sentation. v. Grocers, Inc., Associated C., (2d) 236 S. C. 114 S. E. (1960); Fochtman v. Sales, 581, 106 Clanton’s Auto Auction (1958); (2A) Agency C. (1972); J. S. 160 at 797 RESTATE MENT (SECOND) (1958); § OF AGENCY 267 see Fernander Thigpen, supra (Littlejohn Gregory, JJ., dissenting citing (SECOND) RESTATEMENT OF § AGENCY 267 (1958) approval). Corp. Mabe,

As in B. P. supra, only the factor reliance warrants discussion because the evidence falls far establishing short of reliance.

Watkins went to the buy station to cigarettes, not only gasoline. The reason he selected the Mobil sta- Al- proximity to his house. was because of tion ice, drinks, ciga- purchased soft though Watkins had occasions, no other there is evi- *6 from the station on rettes Operators these supplied Station items. dence Oil, Co., Apple Division American Oil 307 See v. Standard of (N. 1969) (wherein court held Supp. 107 D. the F. Cal. apparent agency where the plaintiff failed to establish the company, the had never plaintiff had had no contact with oil before, stopped had to the station at the station visited belt, company supply purchase a fan which the did not to operator, only would station the station honor the because card). credit Furthermore, no evidence that Watkins was at there is it was Mobil station or that tracted to the station because a by advertising the station. he was enticed Mobil’s to visit Cf. 1971), Texaco, Inc., (2d) (3d 437 F. Cir. cert. Gizzi v. 308 65, (2d) (1971) denied, U. Ct. L. Ed. 57 92 S. 30 404 plaintiff he (ostensible agency found where the testified that company’s advertising of and that the was aware the oil advertising certain sense of confidence the oil instilled a company products). and its argument disagree the sale of

We with Watkins’ products, presence signs and a similar Mobil’s the Mobil’s manager’s uniform, on the and the recital emblem station by identifying signed McCampbell arrest warrant the as the “North Main Mobil” constituted sufficient station apparent agency. Sydenham v. to establish San tiago, (Fla. 1981); (2d) App. 392 So. 357 Dist. Ct. v. Manis Corp., Apple Oil, supra; Oil Standard Division Gulf Co., Co., supra; Inc., American Oil Levine v. Standard Oil Kentucky, 651, 163 (2d) (1964);Reynolds So. V. 249 Miss. Skelly Co., (1939). most, 287 N. At Oil 227 Iowa W. 823 representation oper this evidence a that Mobil constituted station. not Watkins’ ated the It did establish reliance on representation. Watkins, therefore, apparent failed also to establish Mabe, Corp. supra; Shadel v. agency. B. P. Oil Shell cf. (1984) (a jury A. Co., Super. J. 195 N. grant summary presented was and the held judgment inappropriate company where an oil deemed ostensibly public held out to the the owner itself operator company service station the oil to leased defendant, advertising another oil company’s led plaintiff-customer believe oil company special to made a customers, provide good effort services plaintiff-customer, who was assaulted at the station attendant, patronized purchase gasoline). station to reasons, foregoing

For the judgment we reverse the below. judge granted trial should have for Mobil’s motions judgment notwithstanding directed verdict and the verdict. A relationship master-servant did not exist between Mobil Operators employee, McCampbell, and its either apparent agency. reason actual or of necessity

We no find address other issues raised Mobil.

Reversed. *7 J., concurring separate in opinion and Gard-

Cureton, ner, J., dissenting separate opinion. in Judge (concurring):

Cureton, I opinion Judge Goolsby concur written because it both applicable reflects accurate facts and the in this law case.

First, agency a must be made between actual distinction (whether expressed agency. implied) or ostensible and following general statement reflects the rule: implied

An agency distinguishable agency is from an estoppel, or agency,... although ostensible are two often confused and the courts as a rule do dis- not tinguish them use the synonymously. but terms An agency implied agency an actual is as much as if it were words, by express and is a created fact be or shown ascertained inferences deductions from other principal for is responsible, facts while agency strictly estoppel should be limited to those authority cases where the not apparent. real but Agency 2A (1972).Accord, C. J. S. Section Federal Land Ledford, Bank Columbia v. of (1940). case, cursory reading

In even this a of the record shows McCampbell there that is no evidence that was the actual only (implied) agent presented by Mobil Oil. The of question Watkins in his case chief on the of testimony manager that his own the station “was uniform, light jacket dressed a Mobil a blue with the hand, Branham, Mobil emblem.” On other Mobil’s wit- ness, manager for a Station testified that Operators operated the store and hired had supervised McCampbell. He further testified that had nothing operation.1 Clearly, to do with the such evi- store’s does dence not show actual agency,

On the issue ostensible Branham stated on displayed signs that cross-examination the store Mobil’s gasoline. responded question by He sold Mobil to a Watkins’ (counsel as follows: earth, you, very, very, simply, down to

Q. My (sic) no anybody up that came to that station had did anybody they dealing with reason to believe that were Company people worked and the for but Mobil Oil Company? Mobil Oil right, right.

A. That’s does, relies, evidently party third as Watkins When apparent agency,2 all of the elements or ostensible repre- estoppel present. There must be or a must be conduct mislead, upon an actual reliance such sentation calculated injury in change position or reliance representation and a Columbia upon representation. Federal Land Bank such Agency Ledford, supra; 2A C. J. 61. The record Section upon the any evidence that Watkins relied is devoid of *8 injury. or inactions of Mobil to actions implicit injustice says is in Regarding that the dissent to me Judge Goolsby’s opinion, it not been demonstrated has why not or cannot sue Station Watkins did jus- I principal McCampbell. would think of admitted 1The record not show who owned the store. does 2Regardless agency dissent’s assertion that ostensible is of the irrelevant case, requested apparent jury charge to this agency. Watkins and received a way jury’s knowing of We no that the verdict is not based on have apparent agency. or ostensible

71 by tice could suing best be served Watkins Operators. Judge (dissenting):

Gardner, I jury The dissent. the trial of this case awarded $30,000 damages Watkins actual of punitive and damages of $100,000. majority opinion is, opinion of the writer, woefully inconsonant with both the law of this state justice. and The concurring opinion’s obvious discussion of implied opposed as agency to ostensible is irrelevant to this case and this dissent. The agency word as used in this i.e., agency, dissent relates actual relationship a which actually as agreement exists a result parties; of implied agency relationship is a by held to exist the courts from parties; the acts and conduct of the agency ostensible is reality agency all, no at is entirely upon but based estop- pel; something which has no relevance to the case at hand. Agency 2A 52(a) C. J. S. (b) (1980). My Section brother opinion who the concurring authors overlooks the establish- prima ment of a case Watkins of actual If facie by no other evidence the fact that employees one of the in a dressed Mobil Oil working uniform while in a Mobil Oil prima station is sufficient evidence make out a case facie agency; point, noted, at this as proof later burden agency shifted Oil.

In South agency may Carolina be evidenced circum stances, apparent conduct, relations may proved arid be positive circumstantial as well testimony. Gathers v. Supermarket, Harris Teeter 282 C. 317 E.S.

(Ct. App. See 1984). C. Digest, Principal also West S. Key Agency, Additionally, 23(2). great No. impor and of case, tance to this question existence jury fact to be any compe and if there is determined tent from agency may of such inference drawn, legitimately be jury. is one for the Roof, 470, 122 (1924). Hinson v. E.S. See also Principal Digest, Agent, Key S. C. West 24. No. With backdrop, record; upon the above let examine us doing appearance so it becomes obvious that the and circum- surrounding injury give stances Watkins’ far credence to agency; more than an inference of there is cir- substantial *9 fact, is, agency; overwhelm- there evidence cumstantial And, strangely, failed to agency. Mobil ing direct evidence testify employee that at the even one as a witness offer was not its station the station pertinent time being operated for benefit. Branham, station, Mr. Gene appearance of

As to the subject, that the station only testified witness on Mobil’s it, written on top that Mobil was written on the had Mobil any person off the Inter- that came gas pumps and that anywhere in or lived Columbia lived in that area state or every reason to this station had with who did business Corpo- doing with Mobil Oil they business were believe And, startling importance, Mobil’s witness Bran- ration. anybody trading was no reason for that there ham testified they dealing with were to believe with the station Corporation. anyone than Mobil Oil other at fact that the service station It is an uncontradicated Corporation was a Mobil Oil the assault occurred testimony, Throughout the service station. all service of record as a Mobil referred to all witnesses station was by payroll records as Station; was identified the station only 10,704, it was a small which indicates Station Number The arrest warrant de- part holdings of its owner. (1-20 1-26 North Main Mobil the station as scribed importance that no intersection). significance It is of Doe, Operator” appeared on the station sign as “John such fact that the words significance more is the and of even prem- appeared nowhere on Inc.” “Station oil; gasoline and it sold ises. The station advertised large sign the station over gasoline and bore Mobil oil manager of the station written “Mobil.” The on which was Corporation uniform. a Mobil Oil wore correctly law of instructed on the jury The necessary proof thereof South set forth herein and evidence, jury found Carolina; on the above based majority hold that would against Mobil on this issue. agree agency; the writer cannot there was no evidence of decision; there is not hold that this the writer would evidence as to only some but abundance Oper- Now, majority opinion that Service would hold *10 ators, Inc., independent was an contractor and that Mobil Corporation exercised no control over it. The truth of the matter' is that there is not one scintilla of evidence of record Inc., indicate whether Operators, Station was a managing agent Corporation for Mobil Oil subsidiary or corpora- was a tion of Corporation was, Mobil Oil majority or as the would reason, hold independent without an contractor over which Mobil had no control.

And, majority opinion the erroneously holds that the bur- proof den of was on Watkins to establish Oper- that Station ators, Inc., independent was an contractor. The in law South contra; Carolina is it plainly is set forth in the case of Cooper Graham, 404, E. (2d) 98 S. (1957) Supreme wherein the Court of South Carolina holds that prima once a agency case of (and has been made such a facie case Watkins), was made defendant, who claims that it was not liable because the being work was done an independent contractor, has the proving burden of such rela- tionship.1 The points court out that “the facts pertaining being peculiar thereto within his knowledge, the [Mobil’s] justice, law require that the defendant establish the alleged contract to the satisfaction jury by of the greater weight of the evidence.” The court Cooper also observed in Graham it that would be unfair and hardship work a if the put burden should upon be plaintiff disproving an alleged contract to which he stranger. is an entire logic This appealing this, to the writer. Aside from Mobil does not allege that operated by station was independent contractor. denial, Mobil’s answer contains a but no affirma- tive defenses. again And the writer employee notes that no and, further, of Mobil testified there is a total dearth of documentary (contracts, etc) support argu- Inc., ment independent was an operator.

Moreover, disputes propositions the writer of law and majority authorities cited in the opinion. While it is true case; by positive this is the crux of the Watkins and circumstantial And prima agency; the burden then shifted to evidence made a case of facie operated by independent prove theory Mobil to its that the station was contractor, i.e., Operators, Inc. The same would be true if Watkins Service implied agency by estoppel. prima had made a case either of or facie Esau, (Okla. 1963), the case of Coe v. 377 P. display

holds that signs merely of Mobil emblem represented to motorists and others that the station mar- products, keted Mobil’s the writer would hold that this deci- sion from an oil state is anachronistic 1986.Even written, when the decision was those stations were operated by signs Doe, not .Oper- Mobil had such as “John Moreover, knowledge ator.” it is common that since the oil embargo by organization petroleum exporting coun- (OPEC) companies away tries the oil have moved independent from the use opera- contractors toward the tion of companies managing service stations the oil or agents companies management themselves or 250,000 In embargo, firms. before service stations *11 by independents, jobbers were owned oil In franchises. 1981, gasoline prices decontrolled, when were this number 150,000. later, years 1986, had shrunk Five the number 135,000. publication had decreased to See trade called Lindberg 13, 29, May 16, Letters Vol. No. dated 1986. The writer also observes that self-service convenient stores by companies replaced owned have the traditional service by independent station owned example, contractors. For Zippy by Marts/Fast Fares are owned Crown Central Oil Company, Kayo is owned Company, Continental Oil Port, Marvin Starvin and Jet are all owned Marathon Oil Company. Additionally, Companies Gulf and Shell Oil are operating selling candy stations and other convenience store items.

I grounds appeal find no merit to the other argued by Corporation. Mobil Oil stated, disagree

For I holdings the reasons with the of the dissent; majority opinion reject I would also the two arguments by my made Mobil but not reached brethren majority opinion. of the argues judge

Mobil that the trial wrote the form of the complaint verdict back of a which contained a cause jury. reject of action I not submitted to the would argument this because there is some as to whether judge permitted the trial complaint Mobil to examine the given jury and other documents to be and also because judge clearly trial jury pleadings instructed the that the were not evidence.

Additionally, argues that the verdict exceeds the amount prayer contained for relief which Mobil as- $100,000 serts was rather than the million dollars on the complaint amended which should have been submitted to jury. reject I argument would this for the reasons stated Bennett, Jones v. 290 S. (2d) (Ct. C. 348 S. E. App. 1986), and the therein Cumming cases cited. Mobil cites Lawrence, C. 87 S. 69 S. E. (1910) Cox, and Smith v. 83 S. (1909), C. 65 E. 222 authority proposition for the that a prayer verdict cannot exceed the complaint; of the these cases not proposition; do stand for rather, these two cases body hold that wherein the of the complaint, the damages allegations are limited complaint, circumstances, under those a verdict cannot exceed the damages Cumming so stated. and Smith are authority not proposition for the prayer jury limits the award. For above, the reasons stated I dissent and would affirm appealed judgment. Sr., CORPORATION, CLINE, Respondent James R. NOSREDNA INC. Employer, Company, Carrier, Appellants. Fire and United States Insurance

(352 291) *12 Appeals Court of