Watkins v. Mobil Oil Corp.

Goolsby, Judge:

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

The dispositive issue in this case is whether Watkins established that McCampbell, an employee of Station Operators, was Mobil’s “agent, servant, and employee.”

We examine the evidence in accordance with the principles that a judgment must be affirmed on appeal where there is any evidence to support the factual findings implicit in the jury’s verdict and that the party opposing the motions for directed verdict and judgment notwithstanding the verdict is entitled to all favorable inferences where the evidence is conflicting. Hilton Head Island Realty, Inc. v. Skull Creek Club, 287 S. C. 527, 339 S. E. (2d) 890 (Ct. App. 1986).

Sometime between 10:00 and 10:30 p.m. on September 1, 1979, Watkins went to the North Main Mobil Oil Station near Interstate-20 and U. S. Highway 21 in Richland County. Watkins intended “to purchase a pack of cigarettes.” He went to North Main Mobil because it was the “closest station to [his house] that sold [his] particular brand across the counter.”

As he opened the door to enter the station, a man, later identified as McCampbell, slammed the door on Watkins’ hand. Watkins grabbed the door open with his good hand. He demanded an explanation from McCampbell saying, “Hey, what’s wrong with you?”

McCampbell responded, “This place is closed.”

Watkins then remarked, “Well, you picked a hell of a way to tell me it was closed.”

On hearing Watkins’ remark, McCampbell cursed, went behind the counter, and got a gun. He advanced toward Watkins with the gun. Watkins feared for his life.

The station manager stopped McCampbell and tussled with him over the gun. McCampbell, who was the assistant manager of the station, shot the station manager in the struggle for the gun.

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

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

Station Operators ran all Mobil stations in the Columbia area. It employed McCampbell and paid his salary.

No sign identified the station as one operated by Station Operators; however, a Mobil sign topped the station and the word “Mobil” appeared on the station’s gasoline pumps. The station manager wore a jacket that exhibited the Mobil emblem.

I.

We first address the question of whether the evidence was sufficient to support a finding of actual agency.

The decisive test in determining whether the relation of master and servant exists is whether the purported master has the right or power to direct and control the servant in the performance of his work and in the manner in which the work is to be done. Keitz v. National Paving Co., 214 Md. 479, 134 A. (2d) 296 (1957); see Fernander v. Thigpen, 278 S. C. 140, 144, 293 S. E. (2d) 424, 426 (1982) (“The test to determine agency is whether or not the purported principal has the right to control the conduct of his alleged agent.”) (Emphasis theirs); Young v. Warr, 252 S. C. 179, 189, 165 S. E. (2d) 797, 802 (1969) (“The general test applied is ... whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment.”); DeBerry v. Coker Freight Lines, 234 S. C. 304, 307-08, 108 S. E. (2d) 114, 116 (1959) (“The right or power of control retained by the person for whom the work is being done is uniformly regarded as the essential criterion for determining whether the workman is an employee----”).

Here, there is no evidence whatever that Mobil asserted any right to control Station Operators’ operations or its employees, including McCampbell. Absent from the record also is any evidence that Station Operators leased the premises from Mobil or had any sort of agreement with the oil company. So far as the record before us reveals, Station Operators alone controlled the station’s operations, its employees, and the station’s premises.

Indeed, the evidence shows nothing more than that Station Operators sold Mobil’s gasoline, permitted an employee to wear clothing exhibiting Mobil’s emblem, and displayed Mobil’s name atop its station and on its pumps. The display of Mobil signs and its emblem merely represented to motorists and others that the station marketed Mobil’s products. Coe v. Esau, 377 P. (2d) 815 (Okla. 1963).

Without some evidence of Mobil’s right to control the conduct of Station Operators’ business, the evidence is insufficient to warrant the conclusion that a master-servant relationship existed between Mobil and Station Operators, thereby rendering Mobil liable for McCampbell’s actions. Price v. Cities Service Oil Co., 71 A. D. (2d) 700, 418 N. Y. (2d) 488 (1979); see Manis v. Gulf Oil Corp., 124 Ga. App. 638, 185 S. E. (2d) 589 (1971) (evidence that a station operator advertised and sold an oil company’s products, allowed its employees to wear the oil company’s uniform, and accepted the oil company’s credit cards held insufficient to create an issue of fact that the station operator was the oil company’s agent).

Watkins, therefore, failed to establish actual agency. B. P. Oil Corp. v. Mabe, 279 Md. 632, 370 A. (2d) 554 (1977); cf. Fernander v. Thigpen, supra (a genuine issue of material fact held to exist concerning whether an agency relationship existed between a restaurant franchisor and its franchisee where the franchisee’s employees thought they worked for the franchisor, the restaurant displayed the franchisor’s signs and used the franchisor’s napkins, uniforms, and advertising, and the franchise agreement showed the franchisor retained the right tq control the detailed operations of the franchisee, including the management of employees); Chevron Oil Co. v. Sutton, 85 N. M. 679, 515 P. (2d) 1283 (1973) (a genuine issue of material fact held to exist concerning whether an oil company asserted sufficient control over a station operator so as to create a master-servant relationship where the station operator was the oil company’s lessee and the evidence showed the station operator was required, among other things, to promote the sale of the oil company’s brand products, promote the oil company’s image, and remain open at designated times and the evidence also showed the station operator sold gasoline and oil provided by the oil company and received the benefit of the oil company’s advertising, the station operator wore a uniform displaying the oil company’s emblem, and the station operator’s customers were allowed to charge purchases of both products and repairs on the oil company’s credit card).

II.

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

To establish apparent agency, it is not enough simply to prove that the purported principal by either affirmative conduct or conscious and voluntary inaction has represented another to be his agent or servant. A party must also prove reliance upon the representation and a change of position to his detriment in reliance on the representation. ZIV TV Programs v. Associated Grocers, Inc., of S. C., 236 S. C. 448, 114 S. E. (2d) 826 (1960); Fochtman v. Clanton’s Auto Auction Sales, 233 S. C. 581, 106 S. E. (2d) 272 (1958); (2A) C. J. S. Agency 160 at 797 (1972); RESTATEMENT (SECOND) OF AGENCY § 267 (1958); see Fernander v. Thigpen, supra (Littlejohn and Gregory, JJ., dissenting and citing RESTATEMENT (SECOND) OF AGENCY § 267 (1958) with approval).

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

Watkins went to the station to buy cigarettes, not gasoline. The only reason he selected the Mobil station was because of its proximity to his house. Although Watkins had purchased ice, soft drinks, and cigarettes from the station on other occasions, there is no evidence Mobil supplied Station Operators with these items. See Apple v. Standard Oil, Division of American Oil Co., 307 F. Supp. 107 (N. D. Cal. 1969) (wherein the court held that the plaintiff failed to establish apparent agency where the plaintiff had had no contact with the oil company, had never visited the station before, and had stopped at the station to purchase a fan belt, which the oil company did not supply to the station operator, only because the station would honor his credit card).

Furthermore, there is no evidence that Watkins was attracted to the station because it was a Mobil station or that he was enticed by Mobil’s advertising to visit the station. Cf. Gizzi v. Texaco, Inc., 437 F. (2d) 308 (3d Cir. 1971), cert. denied, 404 U. S. 829, 92 S. Ct. 65, 30 L. Ed. (2d) 57 (1971) (ostensible agency found where the plaintiff testified that he was aware of the oil company’s advertising and that the advertising instilled a certain sense of confidence in the oil company and its products).

We disagree with Watkins’ argument that the sale of Mobil’s products, the presence of Mobil’s signs and a similar emblem on the station manager’s uniform, and the recital in the arrest warrant signed by McCampbell identifying the station as the “North Main Mobil” constituted sufficient evidence to establish apparent agency. Sydenham v. Santiago, 392 So. (2d) 357 (Fla. Dist. Ct. App. 1981); Manis v. Gulf Oil Corp., supra; Apple v. Standard Oil, Division of American Oil Co., supra; Levine v. Standard Oil Co., Inc., in Kentucky, 249 Miss. 651, 163 So. (2d) 750 (1964); Reynolds V. Skelly Oil Co., 227 Iowa 163, 287 N. W. 823 (1939). At most, this evidence constituted a representation that Mobil operated the station. It did not establish Watkins’ reliance on the representation.

Watkins, therefore, failed also to establish apparent agency. B. P. Oil Corp. v. Mabe, supra; cf. Shadel v. Shell Oil Co., 195 N. J. Super. 311, 478 A. (2d) 1262 (1984) (a jury question was held presented and the grant of summary judgment was deemed inappropriate where an oil company ostensibly held itself out to the public as the owner and operator of a service station leased by the oil company to another defendant, the oil company’s advertising led the plaintiff-customer to believe the oil company made a special effort to provide good services to its customers, and the plaintiff-customer, who was assaulted at the station by an attendant, patronized the station to purchase gasoline).

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

We find no necessity to address the other issues raised by Mobil.

Reversed.

Cureton, J., concurring in separate opinion and Gardner, J., dissenting in separate opinion.