Sanders v. Clark Oil Refining Corp.

• Decision Date: 27 January 1975
• Docket Number: Docket No. 17627,No. 2,2
• Citation: 57 Mich.App. 687,226 N.W.2d 695
• Parties: Torlice SANDERS, Plaintiff-Appellant, v. The CLARK OIL REFINING CORPORATION, d/b/a Clark Super 100 Service Station, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 695

226 N.W.2d 695

57 Mich.App. 687

Torlice SANDERS, Plaintiff-Appellant, v. The CLARK OIL REFINING CORPORATION, d/b/a Clark Super 100 Service Station, Defendant-Appellee.

Docket No. 17627.

Court of Appeals of Michigan, Division No. 2.

Jan. 27, 1975.

Released for Publication March 19, 1975.

Brian M. Barkey, Flint, for plaintiff-appellant.

Harold B. Blanchet, Jr., Braun, Kendrick, Finkbeiner, Schafer & Murphy, Saginaw, for defendant-appellee.

Before DANHOF, P.J., and BASHARA and ALLEN, JJ.

ALLEN, Judge.

Plaintiff, allegedly shot in the abdomen while on the premises of a Clark Super 100 Service Station, appeals from the trial court's grant of summary judgment in favor of defendant on the dual grounds that plaintiff had failed to state a claim upon which relief could be granted and that there was no genuine issue as to any material fact. GCR 1963, 117.2(1) and (3).

In a bench-delivered opinion October 25, 1973, the trial court concluded that it was 'duty bound' to grant summary judgment in favor of defendant. Relying upon Brown v. Standard Oil Co., 309 Mich. 101, 14 N.W.2d 797 (1944), the court opined, 'It just appears to me there really is not any real control over the premises * * *' that the court could 'interpret or read into the lease (between Fletcher Williams, proprietor of the gas station, and Clark Oil Company)'.

Plaintiff's complaint alleged that defendant is liable on two counts; first, that plaintiff was a business invitee of the service station, and that an employee shot him in the stomach; second, that defendant, by the use of various representation and advertisement, induced plaintiff to visit the station. Plaintiff alleged that defendant had the right and exercised the right to control the management of the station, and was therefore responsible for plaintiff's damages. In its order granting relief in favor of defendant, the court recited that the matters alleged in both counts failed to establish a claim upon which relief could be granted, and that as far as count two was concerned, plaintiff failed to present a genuine issue of fact as well as having failed to state a claim.

A motion for summary judgment granted under GCR 1963, 117.2(1) on the basis that the opposing party has failed to state a claim is to be tested only by the pleadings. Todd v. Bigelow, 51 Mich.App. 346, 349, 214 N.W.2d 733, 734 (1974). In examining those pleadings, a court must accept as true the well-pleaded facts contained therein. Weckler v. Berrien Co. Rd. Comm., 55 Mich.App. 7, 9, 222 N.W.2d 9, 10 (1974). Crowther v. Ross Chemical Co., 42 Mich.App. 426, 431, 202 N.W.2d 577, 580 (1972), stated that:

'The test which the court should apply in considering motions under GCR 1963, 117.2(1) is whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.'

See also Cooke v. Highway Dept. #2, 55 Mich.App. 479, 483, 223 N.W.2d 15, 17 (1974). Crowther further noted that:

'where the resolution of the legal issue may depend greatly upon the factual context, summary judgment on the pleadings is never proper.' 42 Mich.App. 426, 431, 202 N.W.2d 577, 580.

We begin by summarizing the facts pleaded. Count one of plaintiff's complaint basically sets forth a theory of Respondeat superior, a rule which means that 'the master is liable for the acts of a servant while the servant is acting within the scope of his employment.' Stewart v. Napuche, 334 Mich. 76, 79, 53 N.W.2d 676, 677 (1952). See also Truck Ins. Exchange v. Bd. of County Rd. Commrs., 244 F.Supp. 782, 784 (W.D.Mich., 1965). A resolution of that issue initially depends on whether the person who allegedly shot plaintiff was in fact an employee of Clark Oil Company. Plaintiff's second count alleges two alternate theories by which the master-servant or the principal-agent relationship could be established. In count two, paragraph two, plaintiff alleges a claim of agency by estoppel. In count two, paragraph three, plaintiff alleges the theory of agency based upon defendant's right and exercise of that right to control the management of the service station at which plaintiff was allegedly injured. ¹

Our examination of plaintiff's complaint leads us to conclude that plaintiff properly stated a claim in each allegation pleaded. Count one alleged that the individual firing the shot was an employee of the defendant. Count two, paragraph two, stated defendant used the name 'Clark Super 100 Service Station', and represented by its name and advertising that the station was under defendant's control, and that this was intended to induce the public and in fact did induce plaintiff to deal with defendant. The facts so pleaded comport with the established elements of agency by estoppel, namely; that the principal, by its acts and conduct, held the alleged agent out as being authorized; and that a third person, such as plaintiff, relied in good faith upon such representation. Flat Hots Co., Inc. v. Peschke Packing Co., 301 Mich. 331, 337, 3 N.W.2d 295, 297 (1942), Howard v. Park, 37 Mich.App. 496, 499--500, 195 N.W.2d 39, 40 (1972), lv. den. 387 Mich. 782 (1972). Howard quoted approvingly from Stanhope v. Los Angeles College of Chiropractic, 54 Cal.App.2d 141, 146, 128 P.2d 705, 708 (1942), that plaintiff's belief in the agent's authority 'must be a reasonable one'. Paragraph three, count two, alleges that defendant 'exercised control over the management of the service station * * * by contractual arrangements and also by the right of control'. This is sufficient to state a claim of implied agency based upon the principal's control or right to control the alleged agent's activities. For the foregoing reasons we find the trial court erred in granting defendant summary judgment on the ground that the pleadings failed to state a claim upon which relief could be granted.

Did the trial court also err in concluding that summary judgment was proper because of the absence of a genuine issue as to any material fact? When faced with a motion for summary judgment on the grounds that 'there is no genuine issue as to any material fact', GCR 1963, 117.2(3), the court should give the benefit of any reasonable doubt to the opposing party, and should not grant summary judgment unless it finds that 'it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome'. Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316, 320 (1973). Inferences are to be drawn in favor of the one opposing the motion, and the court is to consider the affidavits, pleadings, depositions and other documentary evidence submitted by the parties when determining whether or not to grant summary judgment. Gamet v. Jenks, 38 Mich.App. 719, 723, 197 N.W.2d 160, 163 (1972). See also McLaughlin v. Consumers Power Co., 52 Mich.App. 663, 666, 218 N.W.2d 122, 124 (1974).

In his deposition, plaintiff stated that he followed Joe Wright, his former girlfriend's uncle, into the Clark gas station to assist Wright in delivering an automobile he had been working on. Plaintiff did not go to the gas station to obtain gasoline, nor was he involved in any way with Wright's repair work. Plaintiff's participation was limited to providing transportation for Wright's return to Wright's service station subsequent to delivery of the vehicle. Plaintiff testified that he purchased all kinds of gasoline including Clark. He said that he was unable to recall any specific Clark advertisements, and described them as 'just another ad, I could care less'.

Gamet v. Jenks, Supra, affirmed the granting of a summary judgment where 'as a result of his own deposition testimony, plaintiff's ability to present a case was challenged.' 38 Mich.App. 719,...