Keen, William T.

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University of Florida Levin College of Law

Florida Law Review Volume 6 Issue 2 Article 7 June 1953 Agency: Apparent Authority Doctrine as Applied to Tort Recovery William T. Keen Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation William T. Keen, Agency: Apparent Authority Doctrine as Applied to Tort Recovery, 6 Fla. L. Rev. 248 (1953). Available at: https://scholarship.law.ufl.edu/flr/vol6/iss2/7 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 12:07:05 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                William T. Keen, Agency: Apparent Authority Doctrine as Applied to Tort Recovery, 6U. FLA. L. REV. 248 (1953).                                                          ALWD 7th ed.                                                                         William T. Keen, Agency: Apparent Authority Doctrine as Applied to Tort Recovery, 6U. Fla. L. Rev. 248 (1953).                                                          APA 7th ed.                                                                          Keen, W. T. (1953). Agency: apparent authority doctrine as applied to tort recovery.University of Florida Law Review, 6(2), 248-250.                                     Chicago 17th ed.                                                                     William T. Keen, "Agency: Apparent Authority Doctrine as Applied to Tort Recovery,"University of Florida Law Review 6, no. 2 (Summer 1953): 248-250                     McGill Guide 9th ed.                                                                 William T. Keen, "Agency: Apparent Authority Doctrine as Applied to Tort Recovery"(1953) 6:2 U Fla L Rev 248.                                                          AGLC 4th ed.                                                                         William T. Keen, 'Agency: Apparent Authority Doctrine as Applied to Tort Recovery'(1953) 6(2) University of Florida Law Review 248                                     MLA 9th ed.                                                                          Keen, William T. "Agency: Apparent Authority Doctrine as Applied to Tort Recovery."University of Florida Law Review, vol. 6, no. 2, Summer 1953, pp. 248-250.HeinOnline.                                                                          OSCOLA 4th ed.                                                                       William T. Keen, 'Agency: Apparent Authority Doctrine as Applied to Tort Recovery'(1953) 6 U Fla L Rev 248Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Keen: Agency: Apparent Authority Doctrine as Applied to Tort RecoveryPublished by UF Law Scholarship Repository, 1953CASE COMMENTSAGENCY: APPARENT AUTHORITY DOCTRINE ASAPPLIED TO TORT RECOVERYStuyvesant Corp. v. Stahl, 62 So.2d 18 (Fla. 1952)Plaintiff, while crossing the driveway of defendant hotel in whichhe was a guest, was struck by an automobile driven by an assistantdoorman. The assistant was hired by the head doorman, who by averbal understanding with defendant was to have charge of the door.The doorman paid defendant $1500 per year for this concession. Thehotel furnished parking tickets with the hotel name on them, and thedoorman furnished uniforms1 for himself and his assistants. Theseuniforms bore the name of the hotel. The doorman's compensationwas entirely from tips. 2 Testimony during the course of the trial in-dicated that sufficient control was exercised over the doorman by de-fendant to negative an independent contractor situation. Plaintiffrecovered. On appeal, HELD, the assistant doorman had the authorityor apparent authority to act for defendant in parking automobiles, andsuch parking would create injurious consequences unless proper carewas exercised. Judgment affirmed.In considering tortious conduct of an agent or servant there is nobasic distinction to be drawn between the liability of the principalfor the tort of the agent and the liability of the master for tort of theservant.3 The basis of liability of the master is the doctrine of re-spondeat superior.4 The fact that the servant was hired to do themaster's business by another servant does not mitigate the master'sliability.5 If the person employed is an independent contractor andnot a servant, however, the general rule is that the employer is notliable for the torts of the contractor or those working under him.0IDrennen & Co. v. Smith, 115 Ala. 396, 22 So. 442 (1897) (fact that materialsare furnished by employee, indicating an independent contractor, disregardedwhen employer reserves control over work).2Todd v. Natchez-Eola Hotels Co., 171 Miss. 577, 157 So. 703 (1934) (parkinglot attendant held servant of defendant hotel regardless of fact attendant receivedno salary but depended entirely on tips).3Hardeman v. Williams, 150 Ala. 415, 43 So. 726 (1907).4Williams v. Hines, 80 Fla. 690, 86 So. 695 (1920).5Bucki v. Cone, 25 Fla. 1, 6 So. 160 (1889).6Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927); MECHEM, AGENCY[248]2Florida Law Review, Vol. 6, Iss. 2 [1953], Art. 7https://scholarship.law.ufl.edu/flr/vol6/iss2/7CASE COMMENTSFlorida has clearly recognized that the right of the employer to controlthe method of work as opposed to its results is one of the principalconsiderations in determining whether the employee is an independentcontractor or a servant. 7 Applying this consideration to the instantcase, it would be a factual determination as to whether the doormanwas a servant or an independent contractor.Protection of the employer of an independent contractor fromliability8 fails when the work is of such a nature as to be inherentlydangerous.0 The question of what is inherently dangerous may be forthe court or for the jury.10 The Court in the instant case seemed tohave no trouble in determining, as a matter of law, that the parking ofautomobiles is inherently dangerous."1 Finding this, the defense thatthe employee was an independent contractor or was hired by anindependent contractor would not exonerate the defendant fromliability. Recovery could be justified under this theory of law.2The "apparent authority" language used by the Court is an agencyconcept which is applied most frequently to contract situations. 3 Inrare instances, however, this concept is applied to allow a tort re-covery. 14 One of the bases in these latter holdings is reliance by a§427 (4th ed. 1952); RESTATEMExT, TORTS §409 (1934).7Maule Industries, Inc. v. Messana, 62 So.2d 737 (Fla. 1953); Gulf RefiningCo. v. Wilkinson, supra note 6.8See note 6 supra.DWright-Nave Contracting Co. v. Alabama Fuel & Iron Co., 211 Ala. 89, 99 So.728 (1924); Massachusetts Bonding & Ins. Co. v. Dingle-Clark Co., 142 Ohio 346,52 N.E.2d 340 (1943); accord, Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So.665 (1938). But see Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 671, 114 So. 503,505 (1927). For an excellent discussion of inherently dangerous work as an ex-ception to the general rule see 38 Ky. L.J. 283 (1950).10See 14 N.C.L. Rav. 274 (1936)."lFor a full treatment of automobile liability see Note, 5 U. oF FLA. L. Rav. 412(1952).2See note 9 supra.13Stiles v. Gordon Land Co., 44 So.2d 417 (Fla. 1950); Thompkin Corp. v. Miller,156 Fla. 388, 24 So.2d 48 (1945); Piedmont Operating Co. v. Cummings, 40 Ga.App. 397, 149 S.E. 814 (1929); see MECHEM, AGENCY §424 (4th ed. 1952).14Marchetti v. Olyowski, 181 F.2d 285 (D.C. Cir. 1950); Rhone v. Try Me CabCo., 65 F.2d 834 (D.C. Cir. 1933); Augusta Friedman's Shop, Inc. v. Yeates, 216 Ala.434, 113 So. 299 (1927); Manning v. Leavitt Co., 90 N.H. 167, 5 A.2d 667 (1939);Fields, Inc. v. Evans, 36 Ohio App. 153, 172 N.E. 702 (1929); Santise v. Martins, Inc.,258 App. Div. 663, 17 N.Y.S.2d 741 (2d Dep't 1940); Hannonv. Siegel-Cooper Co.,52 App. Div. 624, 167 N.Y. 244 (2d Dep't 1901) (a leading case). Contra: PiedmontOperating Co. v. Cummings, supra note 13; Jung v. New Orleans Ry. & Light Co.,145 La. 727, 82 So. 870 (1919).3Keen: Agency: Apparent Authority Doctrine as Applied to Tort RecoveryPublished by UF Law Scholarship Repository, 1953UNIVERSITY OF FLORIDA LAW REVIEWthird party on the cloak of authority which the principal has allowedhis agent to assume to the detriment of the third party.1- The FloridaCourt has previously held in cases where no tort was alleged thatreliance was an essential element for recovery on the apparent au-thority concept. 6 The Court, speaking through Justice Sebring, hasstated:' 7"Apparent authority rests on the doctrine of estoppel andarises from the fact of representations or actions by the principaland a change of position by a third person who in good faithrelies on such representations or actions."Even conceding that the assistant doorman was given "apparent"authority to act for the defendant, there was no showing of any re-liance or change of position by the plaintiff in reliance thereonwhich contributed to the accident and would bring the concept intoplay.The Florida Court has seemingly extended the apparent authorityconcept to allow a recovery in tort against the principal when therehas been no reliance by the injured party on that authority. Extend-ing liability is the vogue today, but the need for this extension isquestionable. On the facts set forth in the opinion the plaintiff couldhave recovered against the defendant under either of the twotheories of law' 8 enunciated earlier in this comment without doingviolence to established legal principles.WILLIAM T. KEEN15Marchetti v. Olyowski, supra note 14, criticized in 4 VAND. L. Rav. 375 (1951)because writer felt that there was no reliance; Augusta Friedman's Shop, Inc. v.Yeates, supra note 14; Hannon v. Siegel-Cooper Co., supra note 14; RESTATEMENT,AGENCY §267 (1933). Contra: Jewison v. Dieudonne, 127 Minn. 163, 149 N.W. 20(1914) (but see strong dissents, at p. 170, 149 N.W. at 23, by two justices becauseno reliance by the injured party).loStiles v. Gordon Land Co., supra note 13; Fidelity & Casualty Co. of N.Y. v.Morrison Constr. Co., 116 Fla. 66, 156 So. 385 (1934); accord, Thompkin Corp. v.Miller, supra note 13."7Stiles v. Gordon Land Co., 44 So.2d 417, 422 (Fla. 1950).'sSee notes 4, 9 supra.4Florida Law Review, Vol. 6, Iss. 2 [1953], Art. 7https://scholarship.law.ufl.edu/flr/vol6/iss2/7

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Agency: Apparent Authority Doctrine as Applied to Tort Recovery

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