B. P. Oil Corp. v. Mabe

Levine, J, dissenting: I agree with the Court of Special Appeals, sitting en banc with but one judge dissenting, that the trial judge erred in granting the motion for judgment n.o.v. Viewed in the light most favorable to Mabe, the evidence was sufficient for the jury to conclude that BP represented to Mabe that Faison ⁶⁵⁰ was its agent, and that the representation thereby caused Mabe justifiably to rely upon Faison’s skill. See Restatement (Second) of Agency § 267 (1957). Consequently, I would affirm the judgment of the Court of Special Appeals, which entered a judgment upon the jury verdict. While I agree with the majority that Faison was not BP’s actual agent, I believe that he was BP’s apparent agent, since, under the circumstances, apparent authority was created: “... [A]pparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” Id. at § 27.

What Mabe observed were the indications by signs and advertising that the station was a BP station; nothing attracted him “except for the BP station, ... BP signs, BP gas, BP pumps.” The attendant “had a BP uniform” which was “[g]reen with the yellow BP,” “had a BP hat and just a regular BP service man. BP service man.” Although these manifestations may have been directed to the community at large, they were “words” or “conduct” within the contemplation of § 27. See Restatement, supra, § 8, Comment b.

Moreover, in my view, a jury could find that BP’s manifestations, reasonably interpreted, caused Mabe to believe that BP consented to have Faison service his car. According to the majority’s position, it is common knowledge that a substantial portion of gas stations are independently owned and that the signs mean merely that a customer may purchase BP products. The short answer is that many stations are company owned, and BP, as a principal, is responsible for the information which came to Mabe’s attention. Id. at § 27, Comment a.

In this instance, although Mabe saw all these indicia of BP control, he saw no sign — and there was none — which stated that Faison was ⁶⁵¹ the sole owner of the business. In my view, Mabe reasonably assimilated the information available to him and concluded that Faison was a BP agent. 1 See Wood v. Holiday Inns, Inc., 508 F. 2d 167, 175-77 (5th Cir. 1975); Gizzi v. Texaco, Inc., 437 F. 2d 308, 310 (3d Cir.), cert. denied, 404 U. S. 829 (1971); Standard Oil Co. v. Gentry, 241 Ala. 62 , 1 So. 2d 29, 31-32 (1941); Beck v. Arthur Murray, Inc., 245 Cal. App.2d 976 , 54 Cal. Rptr. 328, 330 (1966); Johnston v. American Oil Company, 51 Mich.

App. 646 , 215 N.W.2d 719, 721 (1974); Chevron Oil Company v. Sutton, 85 N. M. 679, 515 P. 2d 1283, 1286-87 (1973); cf. Taxi Operators v. Kern, 178 Md. 252, 254-59 , 13 A. 2d 374 (1940) (Diamond Cab held liable for injuries sustained in hit and run accident where cabs were individually owned but all bore same markings). See also Sheraton Corp. of Am. v. Kingsford Packing Co., Inc., 319 N.E.2d 852, 857 (Ind. App. 1974). I believe also that the evidence was sufficient to permit a jury to conclude that Faison’s apparent authority caused Mabe justifiably to rely on Faison’s skill.

Although, in my view, the majority erroneously excludes the testimony of Mabe’s father and brother on the issue of Mabe’s reliance, I conclude that in any event, Mabe’s testimony alone presented a jury question. 2 Mabe testified that in addition to the BP station, there were two other stations within sight ⁶⁵² when he noticed that his engine was