Marie F. HUFFMAN, Guardian Ad Litem for Wanda Jean Huffman
v.
GULF OIL CORPORATION.
No. 7525SC188.
Court of Appeals of North Carolina.
July 2, 1975.*385 Simpson, Martin, Baker & Aycock by Samuel E. Aycock, Morganton, for plaintiff appellant.
Uzzell & Dumont by Harry Dumont, Robert E. Harrell and Susan Shatzel Craven, Asheville, for defendant appellee.
MORRIS, Judge.
Rule 54(b) of the Rules of Civil Procedure provides as follows:
"(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
The record in this case does not indicate the disposition of plaintiff's claim against *386 the defendant Whisnant nor does the judgment in this case state there is "no just reason for delay". Accordingly, plaintiff's appeal is subject to dismissal pursuant to Rule 54(b). However, counsel for both parties have stated in oral argument that judgment has been entered with respect to plaintiff's claim against the defendant Whisnant. We, therefore, conclude that the judgment in the case at bar is appealable and have decided to consider plaintiff's appeal on the merits.
Plaintiff's only assignment of error is to the decision of the trial court allowing the defendant Gulf's motion for a directed verdict at the close of the plaintiff's evidence. Plaintiff argues that there was sufficient evidence from which the defendant Gulf could be held liable upon the theories of apparent agency and agency by estoppel for the negligence of the defendant Whisnant, and, therefore, it was error for the trial court to allow the defendant Gulf's motion. In support of this contention, plaintiff relies heavily upon the case of Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir. 1971).
In Gizzi the plaintiffs Gizzi and Giaccio were seriously injured in an expressway collision when the brakes failed on a 1958 Volkswagen van purchased by Gizzi from a Texaco service station operator on the day of the accident. Incident to the sale of the van the Texaco dealer had agreed to put the van "in good working order". His repairs to the van "included the installation of a new master braking cylinder and a complete examination and testing of the entire braking system". Both plaintiffs sued Texaco for damages for personal injuries they sustained in the collision under theories of apparent agency and agency by estoppel. In support of their theories of liability plaintiffs introduced evidence that Texaco exercised control over many activities of the service station in question; that the Texaco insignia and the slogan "Trust your car to the man who wears the star" were prominently displayed by the station, as well as a sign indicating the availability of an "Expert foreign car mechanic" on the premises; and that Texaco engaged in substantial national advertising portraying its dealers as skilled in servicing automobiles. There also was evidence in the record that approximately 30 percent of all Texaco dealers sold used cars and that this activity was "known to and acquiesced in by the corporation".
The United States District Court for the Eastern District of Pennsylvania ruled that the plaintiffs had not introduced sufficient evidence to warrant submission of the issues of apparent authority and agency by estoppel to the jury and directed a verdict in favor of the defendant Texaco. On appeal, the Third Circuit, viewing the evidence in the light most favorable to the plaintiffs, held that "[w]hile the evidence on behalf of appellants by no means amounted to an overwhelming case of liability, we are of the opinion that reasonable men could differ regarding it and that the issue [of apparent authority] should have been determined by the jury, after proper instructions from the court."
In our opinion the Gizzi case is clearly distinguishable from the case at bar. Here the dog was used in connection with a separate coal and wood business and was kept on separately leased property. There was no evidence that the defendant Gulf knew that the separate business was operated by the defendant Whisnant or that the dog could reach the service station property. Moreover as pointed out in a recent note entitled "AgencyApparent Authority and Agency by Estoppel: Emerging Theories of Oil Company Liability for Torts of Service Station Operators", 50 N.C.L.Rev. 647 (1972), "Gizzi may represent an outer limit with respect to what reasonable men could agree on as being within the apparent authority created by the oil company's manifestations to the public. It cannot reasonably be assumed that the oil company `holds out' its dealer with respect to each and every activity the dealer undertakes, and the sale and repair of a used vehicle would *387 seem to be on the borderline." (Emphasis supplied.)
We are of the opinion that a dealer's activity in keeping a watchdog is clearly beyond the borderline of the apparent agency doctrine, especially where, as here, the watchdog is used in connection with a separate business on adjacent, but separately leased premises.
It is most unfortunate that, by reason of Whisnant's keeping a vicious dog on property controlled by him, a little girl has been so disfigured. However, the liability of Whisnant is not before us, and we find nothing in the record which would justify placing liability upon Gulf Oil Corporation.
Affirmed.
BROCK, C. J., and HEDRICK, J., concur.