(dissenting):
I dissent. The jury in the trial of this case awarded Watkins actual damages of $30,000 and punitive damages of $100,000. The majority opinion is, in the opinion of the writer, woefully inconsonant with both the law of this state and obvious justice. The concurring opinion’s discussion of implied as opposed to ostensible agency is irrelevant to this case and this dissent. The word agency as used in this dissent relates to actual agency, i.e., a relationship which actually exists as a result of an agreement of the parties; implied agency is a relationship held to exist by the courts from the acts and conduct of the parties; ostensible agency is in reality no agency at all, but is based entirely upon estop-pel; something which has no relevance to the case at hand. 2A C. J. S. Agency Section 52(a) and (b) (1980). My brother who authors the concurring opinion overlooks the establishment of a prima facie case by Watkins of actual agency. If by no other evidence the fact that one of the employees was dressed in a Mobil Oil uniform while working in a Mobil Oil station is sufficient evidence to make out a prima facie case of agency; at this point, as later noted, the burden of proof of agency shifted to Mobil Oil.
In South Carolina agency may be evidenced by circumstances, apparent relations and conduct, arid may be proved by circumstantial as well as positive testimony. Gathers v. Harris Teeter Supermarket, 282 S. C. 220, 317 S. E. (2d) 748 (Ct. App. 1984). See also 15 West S. C. Digest, Principal and Agency, Key No. 23(2). Additionally, and of great importance to this case, the existence of agency is a question of fact to be determined by the jury and if there is any competent evidence from which an inference of such agency may be legitimately drawn, the question is one for the jury. Hinson v. Roof, 128 S. C. 470, 122 S. E. 488 (1924). See also 15 S. C. West Digest, Principal and Agent, Key No. 24.
With the above backdrop, let us examine the record; upon doing so it becomes obvious that the appearance and circumstances surrounding Watkins’ injury give credence to far more than an inference of agency; there is substantial cir*72cumstantial evidence of agency; there is, in fact, overwhelming direct evidence of agency. And, strangely, Mobil failed to offer as a witness even one employee to testify that at the pertinent time the station in question was not its station being operated for its benefit.
As to the appearance of the station, Mr. Gene Branham, Mobil’s only witness on the subject, testified that the station had Mobil written on the top of it, that Mobil was written on the gas pumps and that any person that came off the Interstate or lived in that area or lived anywhere in Columbia who did business with this station had every reason to believe that they were doing business with Mobil Oil Corporation. And, of startling importance, Mobil’s witness Bran-ham testified that there was no reason for anybody trading with the station to believe that they were dealing with anyone other than Mobil Oil Corporation.
It is an uncontradicated fact that the service station at which the assault occurred was a Mobil Oil Corporation service station. Throughout all the testimony, the service station was referred to by all witnesses of record as a Mobil Station; the station was identified by payroll records as Station Number 10,704, which indicates it was only a small part of the holdings of its owner. The arrest warrant described the station as North Main Mobil (1-20 and 1-26 intersection). It is of significance and importance that no sign such as “John Doe, Operator” appeared on the station and of even more significance is the fact that the words “Station Operators, Inc.” appeared nowhere on the premises. The station advertised Mobil gasoline and oil; it sold Mobil oil and gasoline and bore a large sign over the station on which was written “Mobil.” The manager of the station wore a Mobil Oil Corporation uniform.
The jury was correctly instructed on the law of agency as set forth herein and the necessary proof thereof in South Carolina; based on the above evidence, the jury found against Mobil on this issue. The majority would hold that there was no evidence of agency; the writer cannot agree with this decision; the writer would hold that there is not only some evidence but an abundance of evidence as to agency.
Now, the majority opinion would hold that Service Oper*73ators, Inc., was an independent contractor and that Mobil Oil Corporation exercised no control over it. The truth of the matter' is that there is not one scintilla of evidence of record to indicate whether Station Operators, Inc., was a managing agent for Mobil Oil Corporation or was a subsidiary corporation of Mobil Oil Corporation or was, as the majority would hold without reason, an independent contractor over which Mobil had no control.
And, the majority opinion erroneously holds that the burden of proof was on Watkins to establish that Station Operators, Inc., was an independent contractor. The law in South Carolina is contra; it is set forth plainly in the case of Cooper v. Graham, 231 S. C. 404, 98 S. E. (2d) 843 (1957) wherein the Supreme Court of South Carolina holds that once a prima facie case of agency has been made (and such a case was made by Watkins), a defendant, who claims that it was not liable because the work was being done by an independent contractor, has the burden of proving such relationship.1 The court points out that “the facts pertaining thereto being peculiar within his [Mobil’s] knowledge, the law and justice, require that the defendant establish the alleged contract to the satisfaction of the jury by the greater weight of the evidence.” The court also observed in Cooper v. Graham that it would be unfair and work a hardship if the burden should be put upon the plaintiff of disproving an alleged contract to which he is an entire stranger. This logic is appealing to the writer. Aside from this, Mobil does not allege that the station was operated by an independent contractor. Mobil’s answer contains a denial, but no affirmative defenses. And again the writer notes that no employee of Mobil testified and, further, there is a total dearth of documentary evidence (contracts, etc) to support the argument that Station Operators, Inc., was an independent operator.
Moreover, the writer disputes the propositions of law and authorities cited in the majority opinion. While it is true *74that the case of Coe v. Esau, 377 P. (2d) 815 (Okla. 1963), holds that the display of Mobil signs and its emblem merely represented to motorists and others that the station marketed Mobil’s products, the writer would hold that this decision from an oil state is anachronistic in 1986. Even in 1963, when the decision was written, those stations which were not operated by Mobil had signs such as “John Doe, .Operator.” Moreover, it is common knowledge that since the oil embargo by the organization of petroleum exporting countries (OPEC) in 1972, the oil companies have moved away from the use of independent contractors toward the operation of service stations by the oil companies or managing agents of the oil companies themselves or by management firms. In 1971, before the embargo, 250,000 service stations were owned by independents, oil jobbers and franchises. In 1981, when gasoline prices were decontrolled, this number had shrunk to 150,000. Five years later, in 1986, the number had decreased to 135,000. See trade publication called Lindberg Letters Vol. 13, No. 29, dated May 16, 1986. The writer also observes that self-service convenient stores owned by oil companies have replaced the traditional service station owned by independent contractors. For example, Zippy Marts/Fast Fares are owned by Crown Central Oil Company, Kayo is owned by Continental Oil Company, and Port, Starvin Marvin and Jet are all owned by Marathon Oil Company. Additionally, Gulf and Shell Oil Companies are operating stations selling candy and other convenience store items.
I find no merit to the other grounds of appeal argued by Mobil Oil Corporation.
For the reasons stated, I disagree with the holdings of the majority opinion and dissent; I would also reject the two arguments made by Mobil but not reached by my brethren of the majority opinion.
Mobil argues that the trial judge wrote the form of the verdict on the back of a complaint which contained a cause of action which was not submitted to the jury. I would reject this argument because there is some question as to whether the trial judge permitted Mobil to examine the complaint and other documents to be given the jury and also because the trial judge clearly instructed the jury that the pleadings *75were not evidence.
Additionally, Mobil argues that the verdict exceeds the amount contained in the prayer for relief which Mobil asserts was $100,000 rather than the million dollars on the amended complaint which should have been submitted to the jury. I would reject this argument for the reasons stated in Jones v. Bennett, 290 S. C. 96, 348 S. E. (2d) 365 (Ct. App. 1986), and the cases therein cited. Mobil cites Cumming v. Lawrence, 87 S. C. 457, 69 S. E. 1090 (1910) and Smith v. Cox, 83 S. C. 1, 65 S. E. 222 (1909), as authority for the proposition that a verdict cannot exceed the prayer of the complaint; these cases do not stand for that proposition; rather, these two cases hold that wherein the body of the complaint, the damages are limited by the allegations of the complaint, under those circumstances, a verdict cannot exceed the damages so stated. Cumming and Smith are not authority for the proposition that the prayer limits the jury award.
For the reasons stated above, I dissent and would affirm the appealed judgment.
And this is the crux of the case; Watkins by positive and circumstantial evidence made a prima facie case of agency; the burden then shifted to Mobil to prove its theory that the station was operated by an independent contractor, i.e., Service Operators, Inc. The same would be true if Watkins had made a prima facie case either of implied agency or agency by estoppel.