Starrett v. Shepard, 5200

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before RAPER; ROONEY
• Citation: 606 P.2d 1247
• Parties: Bob STARRETT and Dorthea Starrett, d/b/a Northwest Carriers, Starrett Trucking, Rocky Mountain Trucking and Dalgarno Transportation, Inc., Appellants (Defendants and Third-Party Plaintiffs), v. Tom SHEPARD, d/b/a Shepard's Service, Appellee (Plaintiff), Northwest Carriers, Inc., a Utah Corporation, Appellee (Third-Party Defendant).
• Docket Number: No. 5200,5200
• Decision Date: 26 February 1980

Page 1247

606 P.2d 1247 Bob STARRETT and Dorthea Starrett, d/b/a Northwest Carriers, Starrett Trucking, Rocky Mountain Trucking and Dalgarno Transportation, Inc., Appellants (Defendants and Third-Party Plaintiffs),
v.
Tom SHEPARD, d/b/a Shepard's Service, Appellee (Plaintiff),
Northwest Carriers, Inc., a Utah Corporation, Appellee (Third-Party Defendant). No. 5200. Supreme Court of Wyoming. Feb. 26, 1980.

Page 1248

John L. Hoke, Rawlins (argued), for appellants.

Dennis G. Bonner, Craig, Colo. (argued), for appellee Shepard.

Larry N. Long, Salt Lake City, Utah (argued), for appellee Northwest Carriers, Inc.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellee-plaintiff Shepard (hereinafter referred to as Shepard) operates a motor vehicle repair business and a bulk retail-wholesale outlet for petroleum products at Baggs. He instituted this action against appellants-defendants and third-party plaintiffs Starretts (hereinafter referred to as Starretts) on an account stated for work, labor and services and for interest thereon in the amount of $10,553.20. The thrust of Starretts' answer and of their third-party amended complaint is that appellee-third-party defendant Northwest Carriers, Inc. (hereinafter referred to as Northwest) is liable for payment of the $10,553.20 inasmuch as the debt was incurred for services rendered to motor vehicles which were leased by Starretts to Northwest under a lease agreement, which established the relationship of employer-employee or of principal-agent between the parties to it, with Northwest being the employer or principal

Page 1249

and Starretts being the employee or agent. The trial court refused to admit a copy of the lease agreement into evidence. After a trial to the court, a judgment was entered for Shepard on his claim against Starretts and for Northwest on Starretts' claim against it.

We affirm the judgment in favor of Shepard. Since we find error in the failure of the trial court to admit the lease agreement into evidence, we reverse the judgment in favor of Northwest and remand the case for a new trial on the claim of Starretts against Northwest.

JUDGMENT FOR SHEPARD

Starretts' sole contention of error with respect to the judgment against them and in favor of Shepard is that they were acting in the transaction as employees or agents for Northwest and therefore could not be held liable on a contract made with Shepard for their disclosed employer or principal. This contention presents two issues of fact: One, Were Starretts employees or agents of Northwest? and two, If so, was such relationship disclosed to Shepard?

With reference to issues of fact on appeal, findings of fact are presumptively correct and shall not be set aside unless clearly erroneous or contrary to the great weight of the evidence. Whitefoot v. Hanover Insurance Company, Wyo., 561 P.2d 717 (1977); Shores v. Lindsey, Wyo., 591 P.2d 895 (1979). In addition to the facts specially found, the trial court is assumed to have found those consistent facts which support the judgment, and the trial court's findings are entitled to benefit of all reasonable inferences in support thereof. Hanna State & Savings Bank v. Matson, 53 Wyo. 1, 77 P.2d 621 (1938); Seibel v. Bath, 5 Wyo. 409, 40 P. 756 (1895).

In this case, the trial court found:

" * * * that Plaintiff (Shepard) did business with Defendants (Starretts) individually and regardless of what title Defendants used, there is every indicia of responsibility of the Defendants and assumption of liability by them for the payment of Plaintiff's bill."

At the conclusion of the presentation of the evidence, the trial court rendered its decision and directed preparation of the form of order, saying among other things:

" * * * It's also interesting, I think, in the course of the testimony, that Mr. Starrett said he acted as terminal manager, that he used the Husky Station (Shepard's place of business) somewhat as his dispatch post and he had not only contact but seemingly intimate contact with the Starretts at this time, and at no time was it apparently communicated that Northwest Carriers was liable for these bills and that they would pay these bills * * *."

With reference to the law applicable to these issues of fact:

"The burden of establishing the extent of an agency rests upon the one who asserts it. * * * " Czapla v. Grieves, Wyo., 549 P.2d 650, 653 (1976).

" 'An agent who contracts on behalf of a disclosed principal and within the scope of his authority, in the absence of an agreement otherwise, or other circumstances showing that he has expressly or impliedly incurred or intended to incur personal responsibility, is not personally liable to the other contracting party * * *.' " Thomas v. Gonzelas, 79 Wyo. 111, 119, 331 P.2d 832, 834 (1958) quoting 3 C.J.S. Agency § 215, p. 119. See Kure v. Chevrolet Motor Division, Wyo., 581 P.2d 603 (1978).

" * * * An agent of an undisclosed principal is subject to all liability, expressed or implied, created by the contract in the same manner as if he were the principal * * *." S-Creek Ranch, Inc. v. Monier & Company, Wyo., 509 P.2d 777, 783 (1973).

" * * * (T)he fact of the agency and the nature and extent of the agent's authority were questions for the jury * * *." Henderson v. Coleman, 19 Wyo. 183, 211-212, 115 P. 439, 445 (1911), reh. den. 19 Wyo. 183, 115 P. 1136 (1911).

"Whether or not the fact of the agency and the name of the principal were disclosed

Page 1250

or known to the third party so as to protect the agent from personal liability on the transaction is essentially a question of fact which depends upon the circumstances surrounding the particular transaction. * * * " 3 Am.Jur.2d Agency § 320, p. 678 (1962).

Inasmuch as we will hold that the lease agreement was improperly excluded from evidence, the trial court's finding relative to the nonexistence of the claimed employment or agency relationship may have been improper. However, we need not make a determination relative thereto since there is more than sufficient evidence in the record that the agency or employment, if one, was not disclosed to Shepard. And this determination is dispositive of the claim by Shepard against Starretts.

Shepard was not directly advised that an agency or employment relationship existed between Starretts and Northwest. Nonetheless, Starretts contend that such was within the knowledge of Shepard by virtue of the fact that some of the fuel and services involved in the claim were delivered by and performed on motor vehicles bearing Northwest's name or insignia, the fact that some of the charge tickets referred to Northwest, and the fact that for a period of time the statements were sent to Northwest in Moab. However, there was testimony that the account was opened at Starretts' request in April 1975; that Starretts were the ones who directed that the statements be sent to them rather than to Northwest and such was done in January of 1976; the fact that Starretts were making the payments on the account until it became in default; the fact that the default was for the period of January 1, 1977 to April 7, 1977 in the amount for which this action was instituted; and the fact that Starretts, not Northwest, agreed that it was proper to charge interest on the amount in default. There was no testimony to reflect that Shepard discussed matters concerning the account with anyone other than Starretts.

Even if it were determined that an employer-employee or principal-agent relationship existed between Starretts and Northwest, there is more than a sufficiency of evidence to support the finding that Shepard was not aware of it to the end that Northwest would be liable for this account. The trial court's finding and decision in this respect is not clearly erroneous or contrary to the great weight of the evidence.

JUDGMENT FOR NORTHWEST

Starretts contend that the trial court erred in rendering judgment for Northwest in that:

1. A default judgment should have been entered against Northwest because a motion to quash the service of a summons was filed by a non-lawyer corporate officer of Northwest.

2. The lease agreement between Starretts and...