Shaffer v. Maier - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Shaffer, Executor of Estate of Hutton, Appellant, v. Maier,
d.b.a. Anthony Maier Enterprises, Inc.; Standard Oil Company,
Appellee.
[Cite as Shaffer v. Maier (1994), -- Ohio St.3d ---.]
Civil procedure -- Trials -- Verdicts -- Interrogatories --
Civ.R. 49(B), applied.
(No. 92-198 -- Submitted February 16, 1993 -- Decided
March 9, 1994.)
Appeal from the Court of Appeals for Hamilton County, Nos.
C-900573 and C-900600.
This case arises out of the wrongful death claim brought
by the estate of James A. Hutton. On June 20, 1984, the Cessna
340 aircraft that Hutton was piloting crashed soon after taking
off from Cincinnati's Lunken Airport, killing Hutton, his wife,
and two passengers. Immediately prior to takeoff, Hutton's
propeller-powered plane had been negligently misfueled with jet
fuel by employees of Anthony Maier Enterprises, Inc. ("Maier"),
Lunken's Sohio fuel dealer. That misfueling caused the crash.
The chain of events leading to the fatal accident began in
1981, when Maier, one of four dealers selling aviation fuel at
Lunken, began selling fuel produced by defendant-appellee,
Standard Oil of Ohio ("Sohio"). Sohio provided Maier with free
Sohio paints and Sohio logos to display on Maier's trucks.
Sohio allowed Maier to place a large Sohio sign outside Maier's
premises, and may have furnished the sign free of charge.
Sohio also authorized Maier to accept Sohio credit cards.
While Sohio did not own or control Maier or its operations, it
did inspect Maier's fuel storage facilities to ensure the
integrity of Sohio's product.
As Hutton flew south from his home in Bryan, Ohio, on the
day of the accident, he contacted the Lunken control tower by
radio and specifically asked whether there was a Sohio dealer
at the airport. Hutton carried a Sohio charge card. The tower
referred Hutton to Maier, and gave him the dealership's radio
frequency.
Hutton reached Maier by radio and arranged for refueling.
Immediately upon landing, Hutton and his wife got out of the
plane and walked away for a short time, and may not have seen

Maier's employees as they were making their fatal fueling
mistake. By the time the Huttons returned, the jet fuel truck
had been moved back to its original position next to Maier's
other aviation fuel truck on a nearby ramp. Hutton charged his
gas purchase, signed a receipt which displayed the Sohio logo
in addition to the name "Maier Enterprises," and took off. The
plane crashed shortly thereafter.
At trial, Maier was found negligent as a matter of law by
virtue of its improper fueling of the plane. The question that
the jury faced was whether Sohio could also be found liable.
The trial court granted Sohio directed verdicts on Shaffer's
claims of express agency, implied agency and negligent
entrustment. Shaffer's claims of apparent agency and negligent
hiring survived to go to the jury.
The jury returned a general verdict in favor of Sohio.
However, the jury was presented with several interrogatories in
addition to the general verdict form. The second interrogatory
read as follows:
"Did Sohio allow Maier to act as its apparent agent for
the purpose of selling and dispensing Sohio aviation fuels?"
The jury responded affirmatively. The trial court found
that the jury's answer to the second interrogatory was
inconsistent and irreconcilable with the general verdict, and
thus conformed the general verdict to the interrogatory answer
pursuant to Civ. R. 49. Sohio thus became liable to Shaffer
for $5,904,641.30. Sohio appealed.
The Court of Appeals for Hamilton County reinstated the
jury's general verdict for Sohio, and reversed the trial
court's entry of judgment for Shaffer. In so doing, the court
of appeals concluded that Sohio was entitled to judgment as a
matter of law on the theory of apparent agency, and that the
trial court's denial of Sohio's motion for directed verdict was
improper. The appellate court also decided that the jury's
response to the second interrogatory was not inconsistent and
irreconcilable with the general verdict, and thus reinstated
the jury's verdict for Sohio. The appellate court reasoned
that the interrogatory considered only one prong of a
multi-part test to determine apparent agency, and that just
because the jury was convinced that the evidence proved one
prong did not mean that it believed all the elements were
proved. Therefore, the appellate court ruled that the
interrogatory answer and the general verdict were, in fact,
reconcilable.
Shaffer appealed. The cause is now before this court
pursuant to the allowance of a motion to certify the record.

Kreindler & Kreindler, Marc S. Moller and David L. Fiol,
for appellant.
Squire, Sanders & Dempsey, Robin G. Weaver and James W.
Satola, for appellee.

Pfeifer, J. Before we determine what relation the
jury's general verdict had to its responses to the jury
interrogatories, we must first determine whether the issue of
apparent agency between Maier and Sohio was properly before the
jury. To establish liability premised upon apparent agency, a
plaintiff must show that (1) the defendant made representations

leading the plaintiff to reasonably believe that the wrongdoer
was operating as an agent under the defendant's authority, and
(2) the plaintiff was thereby induced to rely upon the
ostensible agency relationship to his detriment. See Johnson v.
Wagner Provision Co.(1943), 141 Ohio St. 584, 26 O.O.161, 49
N.E.2d 925, paragraph four of the syllabus. Simply stated,
there is a "holding out" of the agent as such to the public by
the principal and a reliance on that holding out by the
plaintiff. The appellate court held that as a matter of law
the mere provision of corporate logos or authorization of
credit card purchases does not constitute a holding out, and
that Sohio was thus entitled to a directed verdict. We
disagree.
The court of appeals based its decision on the "common
knowledge" rule. Other jurisdictions have held in automotive
service station cases that it is a matter of common knowledge
that "trademark signs are displayed throughout the country by
independent dealers." Reynolds v. Skelly Oil Co. (1939) 227
Iowa 163, 171, 287 N.W. 823, 827. The argument seems to be
that since everyone knows that service stations are
independently owned and operated that the use of national-brand
logos and credit cards cannot constitute a holding out of the
agent as such by the principal. That assumed depth of the
general public's knowledge of franchise law seems dubious even
in automotive service station cases. Still, even if we were to
apply the common-knowledge rule to automotive cases, we do not
agree with the appellate court that automobile fuel
distribution and airplane fuel distribution are sufficiently
related to merit the application of the common-knowledge rule
regarding trademark signs to the aviation fuel sales industry.
For the vast majority of Americans, automobiles are an
everyday part of life. Those of us who do not drive at least
encounter automobiles daily, and most people know the location
of the nearest gas station to their home. On the other hand,
most people will never be exposed to their local aviation fuel
dealer. A small percentage of persons own an airplane or have
a pilot's license. Concomitantly, there are comparatively very
few aviation fuel dealers. The low level of contact between
the general public and aviation fuel dealers does not support
the claim that it is a matter of common knowledge that they are
independently operated.
Therefore, the appellate court erred in finding that
Shaffer's claim of apparent agency was insufficient as a matter
of law. The question was properly before the jury.
We must now determine whether the trial court's
conforming of the jury's general verdict to its interrogatory
answer was proper. Neither party disputes as improper the
charge to the jury on apparent agency:
"Now, on the apparent agency theory of recovery, an
apparent agency arises in the absence of express or implied
authority, where one person, by his acts, words or conduct,
causes another party to believe that authority has been given
to an agent to act on his behalf.
"Such authority cannot be proven or shown solely by the
acts of the agent, but must be based on acts, words, conduct or
knowledge by the employer. The employer is responsible only
for such appearance of authority as was caused or permitted by

the employer itself.
"To hold the employer responsible because of apparent
authority, it is necessary that the injured party use the care
of a reasonably prudent person.
"He must prove that the acts or the conduct of the
employer gave him reason to believe that the agent had been
given authority by the employer and that he relied on such
authority in good faith.
"Apparent authority does not arise if the injured party
suspects or has reason to suspect a lack of authority or the
existence of some mistake.
"In order for you to find that Maier was the apparent
agen[t] of Sohio, it will be necessary for you to find that:
"(1) There were acts or omissions by Sohio,
"(2) James Hutton, knowing the facts and acting in good
faith and as a reasonably prudent man, believed such authority
existed in Maier, and
"(3) James Hutton acted in reliance on this apparent
agency to his detriment."
The key question in this case is whether the second
interrogatory, referring to apparent agency, concerned only one
part of the court-enunciated test, or whether it answered the
entire question of whether Maier was the apparent agent of
Sohio. Looking at the interrogatory semantically and
considering its context in the trial, we are convinced that the
jury meant to treat the entire apparent-agency issue in
responding to the second interrogatory.
Again, the second interrogatory reads:
"Did Sohio allow Maier to act as its apparent agent for
the purpose of selling and dispensing Sohio aviation fuels?"
The interrogatory is imperfect. The interrogatory simply
should have asked whether Maier was Sohio's apparent agent.
Still, that shorter question is contained in the longer one.
Also, the most important thing is the implications that go
along with the jury's interrogatory answer.
The jury found that Sohio did allow Maier to act as its
apparent agent. The jury did not say that Sohio had simply
allowed Maier to use its logo or its credit card receipts. The
jury said that Sohio allowed Maier to act as its "apparent
agent," which was defined in the jury instructions as including
acts by Sohio and reliance and injury by Hutton. If the jury
did not believe that Maier was the apparent agent of Sohio, the
jury could not have responded "yes" to the second
interrogatory. The question is phrased such that one must
first accept the premise that Maier was an apparent agent
before finding that Sohio allowed that apparent agency. The
issue of allowance is superfluous, but the question as phrased
does show that the jury accepted the fact that Maier was
Sohio's apparent agent.
If the jury had answered negatively, then there could have
been some confusion as to whether they were responding to the
"allow" portion of the interrogatory or the apparent agency
question. The "yes" response can mean only one thing -- that
the jury believed that Maier was Sohio's apparent agent.
That "yes" response is indeed irreconcilable and
inconsistent with the jury's general verdict in Sohio's favor.
Sohio cannot be Maier's apparent principal and yet not be

liable. However, while inconsistent, the jury's actions are
understandable. The misunderstanding is traceable to the jury
instructions, specifically the portion of the instructions
setting forth Shaffer's theories of recovery. The court gave
the following instructions:
"Now, ladies and gentlemen, recovery by the plaintiffs is
sought on one of several theories.
"One: On the theory that Maier, while acting as the
apparent agent for Sohio, was negligent.
"Two: On the theory that Sohio, in employing Maier, was
negligent in failing to select or employ a competent and
careful independent contractor to sell its aviation fuel.
"Three: On the theory that Sohio, in employing Maier as an
independent contractor, was negligent in failing to recognize
that the sale and resale of aviation fuel was likely to create
a peculiar, unreasonable risk of physical harm unless special
precautions were taken, and further, was negligent in failing
to provide in a contract or otherwise that Maier take such
precautions." (Emphasis added.)
The second and third theories implicate Sohio directly.
It is Sohio's active negligence that is at issue under those
two theories. Under the first theory, Maier's negligence is
the focus, with Maier's relationship with Sohio as a side
issue. Thus, it is quite conceivable that the jury's general
verdict for Sohio was based upon those claims which the jury
believed implicated Sohio directly.
The interrogatories were structured in a way that mirrored
the court's presentation of the theories of liability. The
first two interrogatories concerned Maier's negligence
directly. The first asks whether Maier's negligence
proximately caused Hutton's death. The second interrogatory
does not regard Sohio's negligence directly, but rather deals
with Sohio's relationship with Maier. Interrogatories three
and four deal with whether Sohio employed Maier as an
independent contractor and, if so, whether Sohio was negligent
in so hiring. Interrogatories five and six concern
unreasonable risk in airplane refueling and whether Sohio was
negligent in not requiring Maier to take special precautions.
The jury answered all the interrogatories regarding
Sohio's direct negligence in favor of Sohio. Thus, it is at
least understandable that the jury returned a general verdict
in Sohio's favor. The fact that Sohio is liable to Shaffer
only because of its relationship with Maier and not because of
anything Sohio actively did easily explains how the jury could
make such an error.
It is clear that the jury made an error in returning its
general verdict for Sohio. Pursuant to Civ. R. 49(B), "[w]hen
one or more of the [interrogatory] answers is inconsistent with
the general verdict, judgment may be entered pursuant to Rule
58 in accordance with the answers, notwithstanding the general
verdict, or the court may return the jury for further
consideration of its answers and verdict or may order a new
trial." The trial judge in this case decided to enter judgment
in accordance with the interrogatory answers.
Still, given the conflict between the interrogatories and
the general verdict, the clear, best choice was to send the
jury back for further deliberations. But the trial judge could

not do that in this case. The judge's determination that the
answer to the second interrogatory was inconsistent with the
general verdict and that judgment should be entered in
accordance with the interrogatory answer was made by entry on
June 6, 1989. That entry followed a motion by Sohio for
judgment on the general verdict. The jury had returned their
verdict and interrogatory answers more than six months
previously, on November 23, 1988. Thus, the trial judge did
not have the best option under Civ. R. 49 (B), further jury
deliberations, available to him.
The remaining options available to the trial judge were to
enter judgment in accordance with the interrogatory answer or
to order a new trial. The loss of the third option was too
significant for the trial court to ignore, and prevented a
legal determination consistent with Civ. R. 49(B).
The trial judge was charged with achieving a legal
result. Since a determination legally consistent with Civ. R.
49(B) could not be achieved, the situation as it now confronts
us demands an equitable result. To simply order a new trial
affords no better result than allowing the interrogatories to
control -- they are equals under Civ. R. 49 (B). Thus, in this
extraordinary case, we enter the following judgment.
Shaffer shall be given thirty days from the announcement
of this decision to notify the trial court and defendant Sohio
of his choice of two options. First, Shaffer may decide to let
the trial court's judgment in its favor stand, but also accept
a fifty percent remittitur of the damages awarded against
Sohio. Alternatively, Shaffer may choose to retry the case.
Should Shaffer choose to retry, the only issue to be tried will
be that of Sohio's liability based upon apparent agency.
Judgment accordingly.
A.W. Sweeney, Douglas and F.E. Sweeney, JJ., concur.
Moyer, C.J., Wright and Ford, JJ., dissent.
Donald R. Ford, J., of the Eleventh Appellate District,
sitting for Resnick, J.
Wright, J., dissenting. I concur in Judge Ford's
well-reasoned dissent which would affirm the court of appeals.
Some additional comment is appropriate in light of the novel,
seemingly incomprehensible approach adopted by the majority in
dealing with this admittedly difficult case.
In the case before us the majority readily concedes that
prejudicial error was accomplished when the trial court could
not abide by Civ.R. 49(B). The trial court patently had a duty
to try to resolve the seeming disparity between the verdict for
the defendant and the answer to an "imperfectly" drafted
interrogatory that the majority finds in conflict with that
verdict. The trial court ignored the objections of defendant.
The plaintiff likewise recognized a possible conflict. Despite
the objections, the trial court dismissed the jury.
Historically, remittitur has been used without exception
to reduce damage verdicts which were excessive or motivated by
passion and prejudice. The majority uses this expedient
despite the fact that the amount of damages was not in question
here or in the court of appeals. There is absolutely no
precedent for this tool of dispute resolution in this context.
There is no rule of law expounded here aside from what can
charitably be referred to as the "Rule of Four." At an

absolute maximum, a new trial should be ordered.
Ford, J., dissenting. While I agree with the
majority's treatment of the common-knowledge rule, I
respectfully dissent to the remainder of its opinion because it
fails to apply well-established case law on the dispositive
issue in this matter: that is, whether the jury's response to
the second interrogatory, as submitted to it, is inconsistent
and irreconcilable with the general verdict.
The primary purpose of a special interrogatory is to test
the thinking of the jury. See Staff Note to Civ.R. 49. When a
jury's response to a special interrogatory is consistent with
its general verdict, the general verdict must prevail;
conversely, when a jury's response to an interrogatory is
inconsistent with its general verdict, the trial court may
enter judgment notwithstanding the general verdict. Civ.R.
49(B).
This court has said that "'[j]udgment should not be
rendered on special findings of fact as against the general
verdict unless such special findings *** are inconsistent and
irreconcilable with the general verdict.' (Emphasis added.)"
Becker v. BancOhio Natl. Bank (1985), 17 Ohio St. 3d 158, 160,
17 OBR 360, 361, 478 N.E.2d 776, 778-779, quoting Prendergast
v. Ginsburg (1928), 119 Ohio St. 360, 164 N.E. 345, paragraph
one of the syllabus. Moreover, this court has regularly
statedthat the law "*** does not require a prevailing party to
prove consistency between the verdict and a special finding.
Rather, the law makes it incumbent upon a party challenging a
general verdict to show that the 'special findings, when
considered together, are inconsistent and irreconcilable with
the general verdict.'" (Emphasis sic.) Becker at 162-163, 17
OBR at 363, 478 N.E. 2d at 781; see, also, Pendergast, supra;
Hogan v. Finch (1966), 8 Ohio St. 2d 31, 37 O.O. 2d 305, 222
N.E.2d 633.
When an interrogatory is susceptible to two different
meanings, "[i]f it is reasonably possible so to do, special
findings *** must be harmonized with [the jury's] general
verdict." (Emphasis added.) Klever v. Reid Bros. Express,
Inc. (1949), 151 Ohio St. 467, 474, 39 O.O. 280, 283, 86 N.E.
2d 608, 612. Such is the case because when an interrogatory is
susceptible to two possible but different meanings, one of
which renders the jury's response as being consistent with the
general verdict, the other of which renders its response as
being inconsistent with the general verdict, the party
challenging the general verdict fails to clearly show an
inconsistency. Thus, from the foregoing it is unequivocal that
only if it is impossible to read the second interrogatory as
being consistent with the general verdict is it correct to
enter judgment on such interrogatory.
The jury was instructed that in order to find for
appellant on an agency by estoppel theory, it must find that:
"(1) There were acts or omissions by Sohio,
"(2) James Hutton, knowing, the facts and acting in good
faith and as a reasonably prudent man, believed such authority
existed in Maier, and
"(3) James Hutton acted on this apparent agency to his
detriment."
Given this predicate, we must decide whether it is possible to

construe an affirmative response to the second interrogatory,
which reads: "Did Sohio allow Maier to act as its apparent
agent for the purpose of selling and dispensing Sohio aviation
fuels?," as being consistent with the general verdict.
The majority of the court of appeals concluded that the
interrogatory, as drafted, "*** may be construed to test only
the first element of the theory; that is, whether Sohio acted,
either affirmatively or passively, regardless of whether Hutton
could reasonably and as a matter of law have relied on the act
or omission." Under this possible construction, the
interrogatory did not test the remaining prongs of the
conjunctive test for agency by estoppel: whether a reasonable
person would have believed that an agency relationship existed
based upon the presence of the Sohio logos, whether Hutton
relied in good faith upon such overtures in making his
refueling decision, and whether Hutton sustained injury due to
his reliance.
It is rudimentary that, in order to satisfy a test stated
in the conjunctive, all elements must be proven. It is
possible that the jury's response to the second interrogatory
establishes only that it believed that the first prong was
satisfied. However, to establish inconsistency, appellant was
required to demonstrate that all elements of the test were
fulfilled. Because the interrogatory does not examine or
demonstrate the jury's thinking on the other prongs, we must
presume the jury found at least one prong to be unfulfilled.
Thus, the jury's response to the second interrogatory is not
inconsistent and irreconcilable with the general verdict.
Instead of attempting to read the second interrogatory as
consistent with the general verdict, which time-honored law
requires, the majority does the opposite. While conceding that
the interrogatory submitted to the jury is less than perfect,
the majority expends significant effort to develop an analysis
which supports reading the interrogatory as being inconsistent
with the general verdict. Specifically, the majority takes the
interrogatory, drafted by appellant, which reads "[d]id Sohio
allow Maier to act as its apparent agent for the purposes of
selling and dispensing Sohio aviation fuels?," and redrafts it
with some license in appellant's favor even though the meaning
of an unartfully drafted interrogatory is to be resolved
against the drafter. See Klever at 474, 39 O.O. at 283, 86
N.E.2d at 611. In so doing, the majority deems the word
"allow" to be superfluous, despite the fact that, as previously
stated, such language can be read as testing only the existence
of the first of the four elements required to establish agency
by estoppel. Only then is the majority convinced that the jury
read the interrogatory as going to all of the elements of
agency by estoppel rather than merely to the first prong.
While the majority advances one plausible reading of the
second interrogatory, this writer, as well as anyone without
telepathic powers, cannot be convinced that the jury edited and
understood the interrogatory in the same manner. Moreover, as
previously stated, when an interrogatory is susceptible of two
different meanings, provided it is possible to construe it as
being consistent, the general verdict must prevail. Thus, the
majority would be on firmer terrain, under the facts of this
case, to affirm the court to appeals' decision to reinstate the

jury's general verdict for the sole reason that appellant has
failed to establish that the jury's response to the second
interrogatory is inconsistent and irreconcilable with the
general verdict.
In addition to my disagreement with the majority that the
second interrogatory is inconsistent and irreconcilable with
the general verdict, I also take umbrage with the majority's
mandated remedy.
Civ. R. 49(B) states that when an interrogatory is
inconsistent with the general verdict, "judgment may be entered
pursuant to Rule 58 in accordance with the answers,
notwithstanding the general verdict, or the court may return
the jury for further consideration of its answers and verdict
or may order a new trial." Instead of selecting one of the
possible options provided, the majority crafts an additional
option under the guise of equity. Specifically, it mandates
that Shaffer may choose either a $2.5 million remittitur of the
damages awarded or a new trial; however, such option is not
available under the Civil Rules.
This course of action serves only to create confusion.
One plausible interpretation of the majority's opinion is that
the Civil Rules may be held in abeyance when the result
obtaining appears arduous in a given case. One of the primary
responsibilities of this court is to promote uniform
application of the law, not parochialism. The majority's
remedy defeats this manifest purpose and is not sanctioned by
the Civil Rules. Thus, I also dissent to this portion of its
opinion.
Moyer, C.J., and Wright, J., concur in the foregoing
dissenting opinion.