AAA Tire & Export, Inc. v. Big Chief Truck Lines, Inc.

• Decision Date: 05 May 1980
• Docket Number: No. 13311,13311
• Citation: 385 So.2d 426
• Parties: AAA TIRE & EXPORT, INC. v. BIG CHIEF TRUCK LINES, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 426

385 So.2d 426

AAA TIRE & EXPORT, INC. v. BIG CHIEF TRUCK LINES, INC.

No. 13311.

Court of Appeal of Louisiana, First Circuit.

May 5, 1980.

Michael R. Connelly, Baton Rouge, for plaintiff-appellant AAA Tire and Export, Inc.

Larry M. Roedel, New Orleans, for defendant-appellee Big Chief Truck Lines, Inc.

Joseph R. Raggio, Baton Rouge, for defendant-appellee in third party demand.

Before COVINGTON, LOTTINGER and COLE, JJ.

LOTTINGER, Judge.

This is a suit on an open account filed by AAA Tire and Export, Inc. against Big Chief Truck Lines, Inc. for the sum of $4,765.07. The defendant filed a third party demand against Adam Dixon, Dixon and Company, Inc. and Dixon Trucking Company seeking to be indemnified for any sums it is required to pay on the principal demand.

The issue on appeal is whether Adam Dixon, terminal manager for Big Chief's Baton Rouge operation, had either actual or apparent authority to buy tires for Big Chief from AAA. The trial judge held he did not and dismissed AAA's suit. This appeal has been timely perfected.

AAA, a Florida Corporation which made over-the-phone sales of truck tires and tubes to numerous trucking concerns, made its first sales call to Big Chief in February, 1977. Big Chief was an interstate and intrastate carrier of principally petroleum products. The company, however, owned no trucks or trailers of its own. It leased trucks and trailers from other firms, which handled most of their own maintenance and expense costs.

Robert E. Taylor, president of AAA, obtained Big Chief's name from a Dunn & Bradstreet card which listed Big Chief as a truck hauling company and therefore a potential customer of AAA. Taylor did not know what type of hauling company Big Chief was, but he apparently thought the company would be in need of tires. Dunn and Bradstreet also listed Adam Dixon's name, but the evidence is unclear as to whether Dixon's position with Big Chief was printed on the card. Taylor talked to Dixon on the phone and made his sales pitch. Dixon ordered a number of tires and tubes and requested delivery at Big Chief's Baton Rouge terminal.

Dixon also testified that he told either Taylor or the tire shipper or both that the tires should be addressed to Dixon and Company, a truck leasing firm Dixon operated on the side. Taylor denied this. Dixon also supplied Taylor with two credit references, one from Bossier City Bank and the other from a local tire company. Bossier Bank handled bank business for Dixon and his firm, but did not have an account with Big Chief. Dixon testified that he did business with the local tire company, but that he only bought tires for his own company's trucks. Taylor turned the credit information over to a factor, who supposedly checked the references and approved the credit. The tires were shipped on credit with no down payment, and invoices were later mailed to Big Chief in Baton Rouge. Payments were due in two monthly installments. About a month later, and before any payment had been made on the first shipment, Taylor made a second sales call to Dixon, who ordered another batch of tires and tubes.

All tires were eventually delivered but no payments were made. Dixon said some tires were placed on his own trucks but he did not know how the other tires were used. Dixon's testimony was confusing as to whether any of the tires he ordered were ever placed on trailers which had been leased by Big Chief. He said some of the tires arrived with the words Dixon and Company written on them in yellow color. Dixon has since filed for personal bankruptcy, but AAA was not listed as a creditor.

Stewart C. Bushong, owner and chairman of the board of Big Chief, testified that Dixon had no actual authority to buy tires on behalf of Big Chief. Bushong explained that since Big Chief did not own any trucks, it rarely if ever had the need for tires or tubes to use on the trucks it leased. If a tire on a truck went flat, the lessor was usually called in to make a replacement. Bushong did not recall any time that Big Chief personnel made tire replacements on trucks or trailers leased by the company.

Bushong also testified that Dixon's duties and responsibilities were outlined specifically in a letter Bushong wrote to Dixon when Dixon was hired as terminal manager. The letter gives Dixon authority "to operate and manage our Baton Rouge terminal and over see (sic) the expansion of this facility as our resources permit.

"Specifically, these responsibilities include generation of new accounts and other sales activity, service, lease operator management, dispatcher, maintenance and the required on-site accounting and support for...