Mabe v. B. P. Oil Corp.
| Decision Date | 14 April 1976 |
| Docket Number | No. 341,341 |
| Citation | 356 A.2d 304,31 Md.App. 221 |
| Parties | Claude J. MABE v. B. P. OIL CORPORATION. |
| Court | Court of Special Appeals of Maryland |
B. Ford Davis, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellee.
Argued before ORTH, C. J., and MORTON, MOYLAN, POWERS, GILBERT, MENCHINE, DAVIDSON, MOORE, LOWE, MELVIN and MASON, JJ.
'It may therefore be stated as a general rule that whenever a person has held out another as his agent authorized to act for him in a given capacity; or These are the observations of Floyd R. Mechem, expressed in 1888, in his classic work on Agency. He further indicated in a later edition that because of the necessity of proving the element of reliance, the application of the doctrine in tort cases was limited at best.
has knowingly and without dissent permitted such other to act as his agent in such capacity; or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, authorized to act in that capacity; whether it be in a single transaction or in a series of transactions, his authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence, and he will not be permitted to deny that such other was his agent, authorized to do the act that he assumed to do, provided that such act is within the real or apparent scope of the presumed authority.' Mechem on Agency, §§ 83, 84. (1st ed. 1888).
'Reliance upon appearances, however, does not ordinarily induce to assault, slander, trespass, or negligent injury, and the cases must be rare, if any, in which it could be an element.' Mechem, supra, § 724 (2d ed. 1914).
That observation was perhaps fitting in context of the times over a half century ago, before the conformity demands of national franchise merchandising. There subsequently have developed refinements to the doctrine of 'apparent agency' and the related doctrine of 'agency by estoppel', but the basis for liability remains relatively unchanged-that one should be bound by, and responsible for, his assertions.
The line of demarcation between apparent agency and agency by estoppel is not always clear, Reserve Ins. Co. v. Duckett, 240 Md. 591, 600, 214 A.2d 754, since both theories require essentially the same elements: outward manifestation by the Although there is no Maryland case law dealing with the liability for tortious acts of apparent servants, the definition adopted by the Court of Appeals to describe apparent authority or authority by estoppel in cases based on contractual liability is sufficiently comprehensive to include tort liability as well. The general principle was stated by that Court in Hobdey v. Wilkinson, 201 Md. 517, 526, 94 A.2d 625, 629.
'principal' that an agency relationship exists upon which the one seeking to recover has reasonably relied. 1 When invoking agency by estoppel, however, one must also show a change of position by the third person such that it would be unjust for the purported principal to deny his words or manifestations. Restatement, Agency, 2d, § 8, Comment d. While agency by estoppel is generally used in tort actions and apparent agency in actions based on contract, that usage is not mandatory.
'One who knowingly permits another to act for him as though authorized, inducing third persons to rely to their disadvantage on the seeming authority, is estopped from later asserting the lack of authority of his apparent agent.'
See also Reserve Ins. Co. v. Duckett, supra, 240 Md. at 600-601, 214 A.2d 754. The definition adopted by the American Law Institute in the Second Restatement of Agency is basically the same as Maryland's definition, but utilizes language associated with the law of torts:
'One who represents that another is his servant or The case before us on appeal presents a classic example of facts giving rise to liability based on apparent authority. It is for this reason that we have briefly reviewed the law-that our recital of those facts may be viewed in its proper context.
other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.' Restatement, Agency, 2d, § 267.
Claude J. Mabe testified that, while driving with his father and brother in Baltimore City, they noticed that their automobile needed both gas and water.
'Q Now, you say that you needed gasoline and water? You pulled into where?
A Hilton BP filling station.
Q Were there any other gas stations in that same area?
A Yes, sir.
Q Where were they?
A There was an Exxon on the lefthand side and Gulf station up the-just up the street a little farther.
Q Why did you choose the BP station?
A Because I alsways buy BP gasoline, always deal with BP.
Q Had you dealt with BP before?
A Yes, up on 29th Street and Greenmount Avenue. I(t) 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.
Q Was there any sign up that said anything about being operated by anybody other than BP?
A No, sir.
Q Now, when you drove into the station, what was the first thing that happened?
A Well, the car was on hot so I asked the man for, you know, water to put in the radiator and he handed me a container which I though was water and so did he, apparently.
Q Can you describe the container?
A It was a regular water can with a spout on it.
Q And what did you do then?
A I raised the hood, put it in the radiator and it went down in the radiator and came back up and went on the motor and then it exploded.'
The can was presumably filled with gasoline or some equally volatile liquid. As a result of an injury sustained, Claude J. Mabe sued the B.P. Oil Corporation B.P.). A jury of the Superior Court of Baltimore City returned a verdict in his favor and awarded $2800 in damages. The trial judge subsequently granted B.P.'s motion for judgment n. o. v. and denied Mabe's motion for a new trial which he had filed because of dissatisfaction with the size of the monetary award. Mabe brought the present appeal from the final judgment (n. o. v.), arguing that there was sufficient evidence to provide a jury question, either of the existence of an actual agency relationship between B.P. and the station operator, or of an apparent agency based on manifestations thereof by B.P., upon which appellant relied.
As the granting of appellee's motion for a judgment n. o. v. was, in effect, a granting of its previous motion for a directed verdict, we must determine whether the evidence and the reasonable and proper inferences to be drawn Neither side disputes the negligence of the station attendant who handed Mr. Mabe the water can. Thus, we will treat here only the question of whether there was sufficient evidence to provide a jury question as to the existence of an agency relationship between B.P. and the operator of the station.
therefrom were sufficient to require the submission of the issue to the jury. Lewis v. Accelerated Express, 219 Md. 252, 255, 148 A.2d 783. In doing so, we must 'resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover-that is, the evidence must be viewed in the light most favorable to (appellant Mabe).' Smith v. Bernfeld, 226 Md. 400, 405, 174 A.2d 53, 55; Hagan v. Wash. Sub. San. Comm'n, 20 Md.App. 192, 314 A.2d 699.
To hold an apparent principal responsible for acts of an apparent agent, it is necessary to show something more than a mere holding out by the apparent agent of an appearance of such a relationship. It must be shown that principal knew, or should have known, that the agency relationship was being so espoused and, having such knowledge, that the putative principal condoned, permitted, encouraged, constrained or compelled its continuance. There was evidence in the case at bar that B.P. retained, through a convoluted lease arrangement, substantial, overt and subtle controls over the advertising and physical appearance of the Hilton Street station. In addition to the leases, which were admitted into evidence, the testimony of a B.P. representative explained how, and the extent to which, the rights retained by B.P. in the leases were exercised. The evidence so produced showed, not only...
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