Wayne E. Shaffer v. Anthony Maier, 91-LW-5136
| Decision Date | 04 December 1991 |
| Docket Number | C-900573,91-LW-5136,C-900600 |
| Parties | WAYNE E. SHAFFER, EXECUTOR OF THE ESTATE OF JAMES A. HUTTON, Plaintiff-Appellee/Cross-Appellant v. ANTHONY MAIER, d/b/a/ ANTHONY MAIER ENTERPRISES, INC., ET AL., Defendants and STANDARD OIL COMPANY OF OHIO, Defendant-Appellant/Cross-Appellee APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeals from: Hamilton County Court of Common Pleas Judgment TRIAL NO. A-8407744
Kreindler & Kreindler, Marc S. Moller, Esq., and David Fiol, Esq., 100 Park Avenue, New York, New York 10017, for Plaintiff-Appellee/Cross-Appellant.
Squire, Sanders & Dempsey and Robin G. Weaver, Esq., 1800 Huntington Building, Cleveland, Ohio 44115, and Lawrence & McGrath and James B. McGrath, Jr., Esq., Society Bank Center, Suite 2020, 26 East Seventh Street, Cincinnati, Ohio 45202, for Defendant-Appellant/Cross-Appellee.
DECISION
This cause came on to be heard upon the appeals, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcript of the proceedings, the assignments of error, the briefs and the arguments of counsel.
Defendant, The Standard Oil Company of Ohio ("Sohio"), appeals from the judgment entered below in favor of plaintiff Wayne E. Shaffer, executor of the estate of James A. Hutton ("Shaffer"). In its appeal, Sohio assigns as error the trial court's denial of its motions for summary judgment and directed verdict, arguing that it should not have been held liable on Shaffer's theory that defendants, Anthony Maier, d/b/a/ Anthony Maier Enterprises, Inc., and related entities (collectively referred to as "Maier Aviation"), were Sohio's apparent agents. Sohio also claims that the trial court erred when it overturned the general verdict in favor of Sohio pursuant to Civ. R. 49, based on a purportedly inconsistent answer to an interrogatory, and when the trial court submitted the interrogatory to the jury in the first instance. Finally, Sohio claims that the trial court erroneously permitted Shaffer to cross-examine its expert witness concerning facts it claims were irrelevant.
In his cross-appeal, Shaffer raises two assignments of error. First, Shaffer claims that the trial court erroneously included the term "employer" in its jury charge concerning the theories of apparent agency and negligent selection of an independent contractor. Second, Shaffer argues that the trial court erroneously directed a verdict for Sohio with respect to his theory of negligent entrustment of fuel, signs and symbols.
Neither of Shaffer's assignments of error is well taken. There is, however, merit in Sohio's claims with respect to its motion for directed verdict and the trial court's rendition of judgment based on the jury interrogatory. For this reason, we reverse the judgment entered below and remand this cause to the court of common pleas with instructions to enter judgment in accordance with this decision and the law.
The events relevant to the case before us began in 1981, when Maier Aviation, one of four fixed-base operators ("FBOs") selling fuel at Lunken Airfield in Cincinnati, Ohio, began selling fuel produced by Sohio. Sohio provided Maier Aviation with free paint and company logos to display upon its trucks. Maier Aviation purchased a large Sohio sign to place outside its office. Beyond the provision of fuel and corporate emblems to Maier Aviation and the authorization to accept Sohio credit cards, the record discloses that Sohio owned no part of, and controlled no aspect of, Maier Aviation or its operations. It did, however, conduct inspections of Maier Aviation's fuel storage facilities to assure the integrity of Sohio's product. The fuel trucks and the credit card charge slips used by Maier Aviation displayed the name Maier Aviation or Maier Enterprises in addition to the Sohio logos.
On June 20, 1984, decedent James Hutton flew a Cessna 340 gasoline-powered airplane from his home base in Bryan, Ohio, to Lunken Airfield. Hutton's wife, Susan, accompanied him on the flight to Lunken, where they were joined by John and Patricia Getgey. As Hutton approached the airport, he contacted the control tower by radio and inquired whether a Sohio dealer was present at the airport. Hutton was referred to Maier Aviation and given the dealership's UNICOM radio frequency.
Hutton made further arrangements for refueling with Maier Aviation before landing. Upon landing, Hutton assisted his wife in exiting the airplane and departed the craft for a short time. During this time, Hutton may not have been in a position to see that the plane was being improperly fueled with jet fuel. By the time he returned, the jet-fuel truck had been moved back to its original position next to Maier Aviation's other aviation-fuel truck on a nearby ramp.
Hutton signed the credit receipt prepared by Maier Aviation which contained the terms "640 jet a," entered the plane and prepared to take off. Shortly after the plane left the ground, it crashed, killing all its occupants. At trial, Maier Aviation was held negligent as a matter of law by virtue of the improper fueling of the plane.
Sohio's first and second assignments of error are premised on the same theory: that it was entitled to judgment as a matter of law with respect to Shaffer's theory of apparent agency. The law of Ohio requires a party asserting agency by apparent authority to prove four basic elements. First, there must be acts or omissions by the alleged principal, and, second, these acts or omissions must be of a nature that would lead a reasonably prudent person to believe another is acting on behalf of the alleged principal. Third, a third person knowing the facts and acting in good faith must believe the apparent agent is acting on behalf of the alleged principal, and, fourth, the third person must act in reliance on the apparent agency to his detriment. The first two elements may be taken together to constitute a "holding out" of the agent to the public by the principal. See Craig Wrecking Co. v. S. G. Loewendick & Sons, Inc. (1987), 38 Ohio App. 3d 79, 526 N.E. 2d 321; Irving Leasing Corp. v. M & H Tire Co. (1984), 16 Ohio App. 3d 191, 475 N.E.2d 127; Heritage Oldsmobile Cadillac v. Fifth Third Bank (Oct. 10, 1990), Hamilton App. No. C-890370, unreported. The second two elements may be taken together as a "good faith reliance" element. See Craig Wrecking Co., supra; Irving Leasing Corp., supra; Heritage Oldsmobile Cadillac, supra. A finding of agency by apparent authority must be based upon words or conduct by the principal. Heritage Oldsmobile Cadillac, supra.
Although there is no Ohio authority on point, a clear majority of courts from other jurisdictions have held that a fuel supplier's provision of corporate symbols or logos is not sufficient to create an agency in a fuel retailer through apparent authority. See, e.g. Manis v. Gulf Oil Corp. (1971), 124 Ga. App. 638, 185 S.E. 2d 589; Reynolds v. Skelly Oil Co. (1939), 227 Iowa 163, 287 N.W. 823; Chevron, U.S.A., Inc. v. Lesch (1990), 319 Md. 25, 570 A.2d 840; Sherman v. Texas Co. (1960), 340 Mass. 606, 165 N.E.2d 916; Elkins v. Husky Oil Co. (1969), 153 Mont. 159, 455 P.2d 329; Shaver v. Bell (1964), 74 N.M. 700, 397 P.2d 723; Coe v. Esau (Okla. 1963), 377 P.2d 815, overruled on other grounds, DTS Tank Service Inc. v. Vanderveen (1984), 683 P.2d 1345; Watkins v. Mobil Oil Corp. (1986), 291 S. C. 62, 352 S.E.2d 284; Westre v. DeBuhr (1969), 82 S.D. 276, 144 N.W. 2d 734.
These cases are based on the observation that "[i]t is a matter of common knowledge that these trademark signs are displayed throughout the country by independent dealers." Reynolds, supra, at 171, 287 N.W. at 827. The "common knowledge" rule has also been extended to an independent dealer's practice of honoring the producer's credit cards, which may only be considered indicative of the dealer's use of a distinct business advantage, but not of any element of agency or control by a producer. Shaver, supra, 397 P.2d at 728; Coe, supra, 377 P.2d at 818.
Shaffer argues that the "common knowledge" line of cases should not be extended from the realm of the automobile service stations involved in the cases cited above to FBOs and the sellers of aviation fuels. He notes that other courts have refused to apply the rule in other settings, such as drugstore chains, see, e.g., Drexel v. Union Prescription Centers (C.A. 3, 1978), 582 F.2d 781, or hotel chains. See, e.g., Drummond v. Hilton Hotel Corp. (E.D. Pa. 1980), 501 F. Supp. 29. Further Shaffer argues that at least one court has acknowledged that "an airplane and an automobile are different breeds of cat," and has refused to apply the standards of negligent entrustment for auto leasing to the area of aircraft leasing. Anderson Aviation Sales v. Perez (1973), 19 Ariz. App. 422, 508 P.2d 87, 91-92.
We hold, however, that the fields of automobile fuel sales and aviation fuel sales are sufficiently related to merit application of the common knowledge rule in the context before us. The distinctions to be made between the sale and dispensing of gas for cars and for aircraft are not as great as the distinctions between the qualifications of drivers and pilots, discussed in Perez, supra. The trial court implicitly reached the same conclusion at trial, because it instructed the jury to the effect that the mere provision of and authorization to use corporate logos and credit cards is insufficient to create an agency by apparent authority under Ohio law, t.p. 1983, an instruction which Shaffer does not assign as error.
Shaffer cites several gas station cases for the proposition that the common knowledge rule has not been unanimously applied. See, e.g., Gizzi v. Texaco, Inc. (C.A. 3, 1971), 437 F.2d 308, certiorari denied (1971), 404 U.S. 829, 92 S. Ct. 65; Standard Oil...
To continue reading
Request your trial