Cawthon v. Phillips Petroleum Co.

• Decision Date: 23 November 1960
• Docket Number: No. 1878,1878
• Citation: 124 So.2d 517,83 A.L.R.2d 1276
• Parties: E. Harley CAWTHON, Appellant, v. PHILLIPS PETROLEUM COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 517

124 So.2d 517

83 A.L.R.2d 1276

E. Harley CAWTHON, Appellant, v. PHILLIPS PETROLEUM COMPANY, Appellee.

No. 1878.

District Court of Appeal of Florida, Second District.

Nov. 23, 1960.

Corcoran & Henson, Tampa, for appellant.

Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellee.

KANNER, Judge.

Final summary judgment entered by the court below for the defendant, Phillips Petroleum Company, is questioned by this appeal. The action of the plaintiff, E. Harley Cawthon, was directed against both the oil company and A. W. Frazier, operator of a Phillips 66 service station.

In his complaint Cawthon alleged that A. W. Frazier and the Phillips Petroleum Company, their agents, and servants operated a service station for supplying gasoline, repairs, and other services to automobiles, that they displayed signs bearing the name, 'Phillips 66,' trademark of the oil company, advertising and representing themselves to the public as furnishing experienced and competent servants for automobile repairs. Cawthon also complained that he, relying on such advertising and representations, engaged the services of the defendants for repair of the brakes of his automobile; that such repairs were made by the defendants, who represented the brakes as being in good condition. Cawthon alleged that, as a result of failure of the defendants properly to repair the brakes, an accident occurred while he was operating his automobile, causing certain injuries and damages.

Motion for summary judgment was interposed by the oil company, and attached was an affidavit of the company's Tampa division manager. In substance, the affidavit stated that the oil company never had owned any interest in the filling station or the land on which it is located, that the company had no control with respect to the operation of the station and never had any participation by agency or otherwise in the automobile repair work or other work that had been and was being performed on the premises; that the only relationship of the oil company with the station was that gasoline and similar allied products manufactured by the oil company were sold there by Frazier, who secured the products by outright purchase and sold them in his own title and right as an independent operator and merchant; and that the 'Phillips 66' signs were displayed at the station only for the purpose of indicating that products of the Phillips company were available.

In an opposing affidavit, with a newspaper advertisement ¹ attached, Cawthon stated, in essence, that the oil company had advertised extensively and in newspapers, representing itself and its dealers to the public as furnishing competent servants for automobile repairs and as being engaged in such business. In one particular it was shown by the advertisement attached to the affidavit that owners of motor vehicles were invited to 'Come to your Phillips 66 Dealer for all the things you need to help your car perform at its best!' It was also stated in the affidavit that displayed along with the 'Phillips 66' signs at the station were signs advertising 'Brake Service' and 'Mechanic on Duty.' Cawthon asserted that he relied upon the advertising and representations.

The court granted the motion and entered summary judgment in favor of the defendant oil company, finding that the complaint did not allege that the Phillips Petroleum Company had any control over methods of operation or hiring or firing of employees and that there had been no evidence of agency or apparent agency which would show liability on the part of the oil company. By a separate order, the court held that complaint to be good as against the defendant, Frazier, operator of the service station.

Primarily, Cawthon presents to this court for determination the problem of whether summary judgment was precluded by any genuine issue of material fact upon which could be predicated liability of the oil company on the question (1) of control or agency or (2) of estoppel and apparent agency.

First, whether a filling station operator is an employee of an oil company or an independent contractor depends on the facts of each case, the principal consideration being the right of control as to the mode of doing the work contracted for. Where the employee is merely subject to the control or direction of the employer as to the result to be procured, he is an independent contractor; if the employee is subject to the control of the employer as to the means to be used, then he is not an independent contractor. Miller v. Sinclair Refining Co., 5 Cir., 1959, 268 F.2d 114; and Gulf Refining Co. v. Wilkinson, 1927, 94 Fla. 664, 114 So. 503.

In the case of Miller v. Sinclair Refining Co., the court determined that where the oil company did not control the filling station operator's methods of operation nor the hiring or firing of employees, did not set the retail price for gasoline sold at the station nor hours of opening or closing, could not require reports on operations from the operator, and could not force him to comply with suggestions except to the extent that it had power to cancel the franchise, then the operator was an independent contractor and not an employee of the company. See also Hudson v. Gulf Oil Co., 1939, 215 N.C. 422, 2 S.E.2d 26.

Nowhere in the complaint here nor the counter affidavit was it alleged that there was any control by the oil company over the service station operator, whereas the oil company averred that the only relationship between them was that of seller and purchaser. Neither did the general advertisement nor signs create an issue of control. Without repeating the facts, we note that the effect of the defendant's affidavit was to show that no control nor right of control existed and to show, contrariwise, that the operator of the filling station was an independent contractor and not an employee. Indisputably, there was no evidence of agency upon which to predicate liability.

Let us examine next the question of estoppel and apparent agency. In order for the principle of estoppel to apply, the one seeking to recover damages not only must have been misled but must have acted to his injury by reason of having been misled. Gulf Refining Co. v. Wilkinson, supra.

The...