{
  "id": 8552729,
  "name": "MARIE F. HUFFMAN, Guardian Ad Litem for WANDA JEAN HUFFMAN v. GULF OIL CORPORATION",
  "name_abbreviation": "Huffman v. Gulf Oil Corp.",
  "decision_date": "1975-07-02",
  "docket_number": "No. 7525SC188",
  "first_page": "376",
  "last_page": "382",
  "citations": [
    {
      "type": "official",
      "cite": "26 N.C. App. 376"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "50 N.C. L.Rev. 647",
      "category": "journals:journal",
      "reporter": "N.C. L. Rev.",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "437 F. 2d 308",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        2209773
      ],
      "year": 1971,
      "opinion_index": 0,
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        "/f2d/437/0308-01"
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  "last_updated": "2023-07-14T16:59:13.418266+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Hedrick concur."
    ],
    "parties": [
      "MARIE F. HUFFMAN, Guardian Ad Litem for WANDA JEAN HUFFMAN v. GULF OIL CORPORATION"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nRule 54(b) of the Rules of Civil Procedure provides as follows:\n\u201c(b) Judgment upon multiple claims or involving multiple parties. \u2014 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, \u2022any order or other form of decision is subject tb revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.\u201d\nThe record in this case does not indicate the disposition of plaintiff\u2019s claim against the defendant Whisnant nor does the judgment in this case state there is \u201cno just reason for delay.\u201d Accordingly, plaintiff\u2019s 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\u2019s claim against the defendant Whisnant. We, therefore, conclude that the judgment in the case at bar is appealable and have decided to consider plaintiff\u2019s appeal on the merits.\nPlaintiff\u2019s only assignment of error is to the decision of the trial court allowing the defendant Gulf\u2019s motion for a directed verdict at the close of the plaintiff\u2019s 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\u2019s motion. In support of this contention, plaintiff relies heavily upon the case of Gizzi v. Texaco, Inc., 437 F. 2d 308 (3d Cir. 1971).\nIn 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 \u201cin good working order.\u201d His repairs to the van \u201cincluded the installation of a new master braking cylinder and a complete examination and testing of the entire braking system.\u201d 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 \u201cTrust your car to the man who wears the star\u201d were prominently displayed by the station, as well as a sign indicating the availability of an \u201cExpert foreign car mechanic\u201d 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 \u201cknown to and acquiesced in by the corporation.\u201d\nThe 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 \u201c[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 determind by the jury, after proper instructions from the court.\u201d\nIn our opinion the Gizzi case is clearly distinguishable from the case at bar. Here the dog was used in connection with \u00e1 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 \u201cAgency \u2014Apparent Authority and Agency by Estoppel: Emerging Theories of Oil Company Liability for Torts of Service Station Operators,\u201d 50 N.C. L.Rev. 647 (1972), \u201cGizzi 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\u2019s manifestations to the public. It cannot reasonably be assumed that the oil company \u2018holds out\u2019 its dealer with respect to each and every activity the dealer undertakes, and the sale and repair of a used vehicle would seem to be on the borderline.\u201d (Emphasis supplied.)\nWe are of the opinion that a dealer\u2019s 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.\nIt is most unfortunate that, by reason of Whisnant\u2019s 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.\nAffirmed.\nChief Judge Brock and Judge Hedrick concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Simpson, Martin, Baker & Aycock, by Samuel E. Aycock, for plaintiff appellant.",
      "Uzzell and Dumont, by Harry Dumont, Robert E. Harrell and Susan Shatzel Craven, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MARIE F. HUFFMAN, Guardian Ad Litem for WANDA JEAN HUFFMAN v. GULF OIL CORPORATION\nNo. 7525SC188\n(Filed 2 July 1975)\nPrincipal and-Agent \u00a7 9\u2014 watchdog kept by service station operator \u2014 liability of oil company \u2014 apparent authority\nIn an action to recover for injuries sustained by the minor plaintiff when she' was bitten by a dog on the premises of a Gulf Oil service station, plaintiff\u2019s evidence was insufficient to hold Gulf Oil Corporation liable for the negligence of the service station operator upon theories of apparent agency and agency by estoppel where it tended to show that the dog was used by the service station operator as a watchdog for a coal and wood business on adjacent, separately leased property since a dealer\u2019s activity in keeping a watchdog does not come within the apparent agency doctrine, especially where the watchdog is used in connection with a separate business on adjacent property.\nAppeal by plaintiff from Thornburg, Judge. Judgment entered 11 October 1974 in Superior Court, Burke County. Heard in the Court of Appeals 13 May 1975.\nThis is a civil action instituted by the guardian ad litem and mother of the minor plaintiff against the defendants, Ray Whisnant and Gulf Oil Corporation, to recover damages for personal injuries sustained by the minor plaintiff, when she was bitten by a dog owned by the defendant Whisnant, and kept on his business premises \u201cfor purposes of guarding said premises.\u201d On 31 August 1973 plaintiff filed a complaint alleging that on 9 June 1971 the minor plaintiff and her mother were on the business premises of the defendant Whisnant, \u201cwho was at that time operating Ray\u2019s Scenic Gulf as an agent, servant, and employee of the defendant, Gulf Oil Corporation\u201d; that they \u201chad gone upon these premises for the mutual benefit of themselves and the defendants in that they were on said premises to purchase the goods and services which were for sale to the public\u201d and \u201cwere therefore invitees of the defendants\u201d; that the minor plaintiff was attacked by a large German Shepherd dog owned by the defendant Whisnant, and that as a proximate result of the attack, \u201csuffered grevious personal injuries.\u201d Plaintiff further alleged that the defendant Whisnant, as agent of the defendant Gulf, knew of the dog\u2019s vicious character and, was negligent in failing to restrain or'warn customers of its propensity \u201cto attack and bite persons who came upon said premises.\u201d\nThe defendant Gulf answered denying negligence and alleging contributory negligence on the part of the minor plaintiff. A subsequent motion for summary judgment filed by the defendant Gulf was denied.\nAt the trial the plaintiff presented several witnesses. A police officer with the City of Morganton, who investigated the incident on 9 June 1971, testified that he found a large German Shepherd dog chained to a small building, which was located about 28 feet behind the defendant Whisnant\u2019s Gulf station; that the dog\u2019s chain allowed it to reach a driveway which ran behind the station; \u25a0 and that the dog was barking and growling and would not allow one of his fellow officers to get out of the right-hand door of their patrol car. The officer further testified that on 9 June 1971 he did not see a warning sign, but that upon his return the following day, nearby shrubs had been cut and a large \u201cBeware of Dog\u201d sign was visible from the street.\nA medical doctor who treated the minor plaintiff\u2019s injuries described her injuries and gave his opinion regarding the cost of additional surgery that might improve her appearance.\nSeveral witnesses testified'that on prior''occasion's the dog wag \u201cvery aggressive\u201d and would growl and bark. A. witness testified that on one occasion the dog had \u201ccharged\u201d toward him.\n\" The minor plaintiff\u2019s mother testified that her husband stopped at the Whisnant\u2019s Gulf station on the morning of \u25a0 9 June 1971 because \u201cthe car was giving [them] trouble and it needed some gas\u201d; that he parked beside the station and began working under the hood and that she had just gotten the key to the restroom when she heard a scream and saw the defendant Whisnant\u2019s dog with her six-yearr-old daughter\u2019s head in its mouth, slinging her. Mrs. Huffman stated that the dog had its chain extended and was in the driveway behind the - station when she saw it. The dog attacked her and tore her dress when she rushed over to get her daughter.\nThe minor plaintiff\u2019s father testified that Gulf advertising had influenced him to stop at this station and that he had been using Gulf products \u201cfor about six or seven months\u201d; that he \u201chad not looked\u201d to see a \u201cBeware of the Dog\u201d sign and that he did not see his daughter walk from the car in the direction of the dog because he was under the hood checking the oil and looking at the carburetor.\nThe defendant Whisnant was called as an adverse witness. Whisnant testified that he had been operating this particular Gulf station for \u201cclose to ten years\u201d; that he advertised and sold Gulf Oil Company products; that he \u201cleased the property back of the station from someone by the month\u201d and operated a separate coal and wood business out of the building on that property. Whisnant stated that although the two tracts of land were rented separately, there was no fence or anything between them and \u201c[t]he people that sold the gas and oil also sold the coal and wood.\u201d He further testified that he had had the dog for \u201cfour and a half or five years\u201d; that before he got the dog he had problems \u201cwith people stealing stuff\u201d and \u201c[t]he dog was there to guard the coal and the wood\u201d; that \u201c[t]he purpose of the dog was to scare people away from there.\u201d Sometimes the dog would bark and growl and \u201c[i]f they got close to him, he would run at them and chase them.\u201d Whisnant denied the dog had ever bitten anyone and stated that he did not consider the dog mean. He also maintained that a large \u201cBeware of Dog\u201d sign was visible on 9 June 1971 and denied that he had sawed off a tree limb after the minor plaintiff was bitten to make the sign more visible. Whisnant testified that he had not seen the minor plaintiff\u2019s parents before 9 June 1971.\nAt the close of the plaintiff\u2019s evidence, the defendant Gulf moved for a directed verdict pursuant to Rule 50(a) of the North Carolina Rules of Civil Procedure on the following grounds:\n\u201c1. That on the basis of the pleadings and the evidence the plaintiff has shown no right to relief against the defendant, Gulf Oil Corporation.\n2. That there is no substantial evidence that the defendant, Gulf Oil Corporation, had any control over the premises occupied by the defendant, Ray Whisnant, on the occasion giving rise to this action.\n3. That there is no substantial evidence that the defendant, Ray Whisnant, was the agent, servant or employee of Gulf Oil Corporation on the occasion giving rise to this action.\n4. That there is no substantial evidence that the defendant, Gulf Oil Corporation, was negligent in proximately causing any injuries or damages which the minor plaintiff may have sustained.\n5. That the plaintiff has offered no evidence as against the defendant, Gulf Oil Corporation, of either the agency of Ray Whisnant to Gulf Oil Corporation or of any liability on the part of Gulf Oil Corporation, but on the contrary, the evidence submitted as to the defendant, Gulf Oil Corporation, discloses affirmatively that the defendant, Ray Whis-nant, was an independent contractor, and had sole and exclusive control over the premises leased by him from John Mackerall, and that Gulf Oil Corporation had no control or right to control over said premises or the defendant, Ray Whisnant.\u201d\nFrom judgment allowing defendant Gulf\u2019s motion for a directed verdict on grounds \u201cthe plaintiff\u2019s evidence considered in the light most favorable to the plaintiff, was insufficient to support a verdict for the plaintiff against the defendant, Gulf Oil Corporation,\u201d plaintiff appealed.\nSimpson, Martin, Baker & Aycock, by Samuel E. Aycock, for plaintiff appellant.\nUzzell and Dumont, by Harry Dumont, Robert E. Harrell and Susan Shatzel Craven, for defendant appellee."
  },
  "file_name": "0376-01",
  "first_page_order": 404,
  "last_page_order": 410
}