B. P. Oil Corp. v. Mabe

• Decision Date: 18 March 1977
• Docket Number: No. 43,43
• Citation: 279 Md. 632,370 A.2d 554
• Parties: B. P. OIL CORPORATION v. Claude J. MABE.
• Court: Maryland Court of Appeals

Page 632

279 Md. 632

370 A.2d 554

B. P. OIL CORPORATION v. Claude J. MABE.

No. 43.

Court of Appeals of Maryland.

March 18, 1977.

Wilbur D. Preston, Jr., Baltimore (B. Ford Davis and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellant.

Lewis A. Noonberg, Edward S. Digges, Jr., David F. Tufaro, Piper & Marbury and Richard P. Delaney, Baltimore, on the brief, amicus curiae, for Exxon Corp.

Gordon W. Priest, Jr. and Peter Parker, Baltimore (White, Page & Lentz, Baltimore, on the brief), for appellee.

Argued Nov. 5, 1976 before MURPHY, C. J., and SINGLEY, SMITH, LEVINE and ELDRIDGE, JJ.

Reargued Dec. 9, 1976 before MURPHY, C. J., SINGLEY, SMITH, LEVINE and ELDRIDGE, JJ., and JAMES MACGILL, Chief Judge of the Fifth Judicial Circuit and JOHN E. RAINE, JR., Chief Judge of the Third Judicial Circuit, both specially assigned.

SMITH, Judge.

The issue presented in this case is whether appellee, Claude J. Mabe (Mabe), established that a service station operator, Lonnie Faison (Faison), was an agent of appellant, B. P. Oil Corporation (BP). The Court of Special Appeals held in Mabe v. B. P. Oil Corp., 31 Md.App. 221, 356 A.2d 304 (1976), that an agency by estoppel was established. Since we conclude that Mabe failed to establish either actual agency or agency by estoppel, the judgment of the Court of Special Appeals will be reversed.

The incident giving rise to this litigation occurred when Mabe, accompanied by his father and his brother, noted the need for gasoline and water for his automobile and pulled into a filing station operated by Faison. He stated that he asked the attendant there for water to put in the radiator of the car. Mabe said that when its contents were placed in the radiator 'it went down in the radiator and came back up and went on the motor and then it exploded,' causing a fire which injured him. It seems to have been assumed by all parties that this was gasoline.

Mabe's suit against Faison and BP alleged that the service station in question was 'owned and under the direction of the defendant B P Oil Corporation and operated by its agent Lonnie Faison, trading as Faison Service Station . . ..' He claimed that his injuries 'stemmed directly from the negligent and tortious conduct of the defendants and their agents . . ..' A Baltimore City jury returned a verdict of $2,800 in favor of Mabe against BP. ¹ The trial judge (Dorf, J.) granted BP's motion for judgment n. o. v., finding 'no agency of any kind,' and that 'this case (was not) one of apparent authority or agency by estoppel.' The Court of Special Appeals reversed.

The service station in question was painted yellow and green, said to be the BP colors. There was a large BP sign on a pole hanging over the station; BP insignia appeared on the gasoline pumps; there was a tow truck present with a BP sign on it, and the attendant in question wore a uniform with yellow and green BP emblems on his jacket and cap.

The service station building was leased by the owner to Faison. He leased it to BP who in turn leased it back to Faison, Gasoline tanks, pumps and signs were owned by BP. Under the agreement between Faison and BP, Faison was required to 'furnish, install and display continuously on the exterior of the station at a point visible and accessible to the public, a legible sign showing that (he was) occupying said station under a lease and (was) the sole owner of the business.' Mabe was asked by his attorney whether there was 'any sign up that said anything about being operated by anybody other than BP,' to which he replied in the negative. The record is otherwise silent as to such a sign.

Under the agreement between BP and Faison he was to buy a minimum of 180,000 gallons of gasoline per year, which works out to 15,000 gallons per month. He testified, however, that he 'was only buying 400 gallons of gasoline per week,' a reason given for the fact that he did not participate in any promotion of BP, saying that he could not 'afford to on that.'

There is a suggestion by Mabe that the compensation of Faison was fixed and controlled by BP because under the lease arrangement he received a net of one and a half cents per gallon on gasoline sold. BP paid Faison two cents per gallon as its rental for the lease from Faison and he paid BP one-half cent per gallon as rent under the lease to him. This contention overlooks the fact that rent in some amount, not shown in the record, was due from Faison to the owner of the premises. Moreover, if he had no rent to pay to the owner, sale of the maximum of $230,000 gallons of gasoline provided in the contract would provide remuneration of only $3,450 per year. This makes it obvious that the profit to be derived by Faison from the operation of the service station in question came not from this source, but from the difference between the buying price and selling price of the gasoline and other items sold by him after deduction of other expenses of operation.

Faison was paid no salary or commission by BP. Any employees were hired, fired, and paid by him. He was required to make no reports to BP relative to his sales and service operation. He paid his own sales and other taxes. BP had no control over the hours of station operation, the hours of operation being fixed by Faison. Faison paid cash on delivery for that which he bought. If he did not have the money to pay, he did not obtain the product. He provided his own uniforms and said that BP never told him that he had to wear a uniform of any kind.

An agreement was in existence between BP and Faison relative to the purchase of tires, batteries, and other equipment. He was not obliged to enter into such an agreement nor was any of this equipment a BP product. The record is unclear as to whether a BP representative periodically called on Faison to assist him by making suggestions calculated to increase sales. Faison said unequivocally that no such representative appeared. The BP sales supervisor who testified, but who at the time of this incident 'was manager of the clerical force, record keeping, reports' and who became sales supervisor subsequent to this incident, said such representatives did call on Faison.

Mabe's reasons for entering the station in question were set forth in the following testimony on direct examination:

'Q Why did you choose the BP station?

'A Because I always buy BP gasoline, always deal with BP.

'Q Had you dealt with BP before?

'A Yes, up on 29th Street and Greenmount Avenue. I (sic) was right around the corner from where I lived at.

'Q How often had you dealt with them?

'A I had been dealing with them for around about a year at that time.

'Q Was there anything in particular you-attracted you to the BP station on Hilton Street?

'A Nothing except for the BP station, had BP signs, BP gas, BP pumps.'

Although his brother twice said that reasons for entering this station were 'the happy motoring sign' which he said 'is a slogan and it means that there's good service,' it was not actually established that such a sign, the sign of one of BP's competitors, was on the premises.

In passing upon the propriety of the trial judge's action in granting judgment n. o. v., we are obliged to resolve all conflicts of evidence in favor of the plaintiff, Mabe, to assume the truth of all evidence, and to accept such inferences as may naturally and legitimately be drawn from the evidence which tend to support the plaintiff's right to recover. Dix v. Spampinato, 278 Md. 34, 37, 358 A.2d 237 (1976); Fleming v. Prince George's County, 277 Md. 655, 658, 358 A.2d 892 (1976); Taylor v. Armiger, 277 Md. 638, 640, 358 A.2d 883 (1976), and cases there cited.

I Actual Agency

We first address ourselves to whether actual agency was established since there would be no reason to consider the doctrine of apparent agency or agency by estoppel if there were sufficient evidence of actual agency to warrant consideration of the case by the jury.

As far back as DeFord v. State, use of Keyser, 30 Md. 179 (1869), this Court stated that the presence or absence of control is an essential element in determining whether a master-servant relationship exists. Our predecessors there said:

'If they were at his command and bound to obey his orders and direction, in regard to the work they were engaged in, and could be, at any time he thought proper, discharged by him, then they were his servants, and he is liable for the consequences of their negligence and malfeasance committed in the course of their employment. But if, on the other hand, they were at work or directing the work on the building, as independent contractors or the servants and employees of independent contractors, over whom he could rightfully exercise no such control and direction, he is not so liable.' Id.. at 203-04.

Criteria for determination of whether a master-servant relationship exists were set forth in Sun Cab Co. v. Powell, 196 Md. 572, 77 A.2d 783 (1951), where the Court said:

'It is generally stated that there are four elements to be considered in determining the question whether the relationship of master and servant exists. These elements are: (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the power of control of the servant's conduct.' Id. at 577-78, 77 A.2d at 785.

In Keitz v. National Paving Co., 214 Md. 479, 134 A.2d 296 (1957), Judge Prescott referred for the Court to these four criteria and then added a fifth, 'whether the work is a part of the regular business of the employer.' The power to control was the fourth item there listed. The opinion further stated:

'Standing alone, none of these indicia, excepting (4), seems controlling in the determination as to whether such relationship exists. The decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the...