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KIRBY v. GULF OIL CORP. ET AL.

July 26, 1956

PAUL E. KIRBY, RESPONDENT,
v.
GULF OIL CORPORATION AND DUDLEY J. WHITLOCK, JR., APPELLANTS.



The opinion of the court was delivered by: Oxner, Justice.

July 26, 1956.

This action was brought by Paul E. Kirby against the Gulf Oil Corporation and Dudley J. Whitlock, Jr., to recover actual and punitive damages on account of an alleged conspiracy to oust Kirby from a filling station operated by him at Union, South Carolina and drive him out of business. Each of the defendants moved to strike certain portions of the complaint and also interposed a demurrer. The motions and demurrers were overruled in an order filed on October 16, 1953, from which there was timely notice of intention to appeal. Defendants later filed separate answers. The case was tried in December, 1953 and resulted in a verdict in favor of the plaintiff for $4,500.00 actual damages against both defendants and $50,000.00 punitive damages against Gulf Oil Corporation alone. During the trial of the case defendants made timely motions for nonsuit and directed verdict and later for judgment non obstante veredicto or, in the alternative, for a new trial. All of these motions were refused. The defendants have appealed from the order refusing the motions to strike and overruling the demurrers and from the judgment entered on the verdict of the jury.

There are numerous questions raised by the exceptions but we need consider only those relating to the failure of the Court to direct a verdict in favor of appellants. The consideration of this question necessitates a rather lengthy review of the testimony.

D. Jean Whitlock, father of appellant Dudley J. Whitlock, Jr., owned and operated a service station at the northeast corner of North Pinckney and Academy Streets in the town of Union where he sold Gulf products at retail. He was also distributor for Gulf products in Union County.

Respondent Kirby is 51 years of age. His education did not extend beyond the sixth grade. Prior to 1945 he worked some twenty years at a service station and around ten years as a textile employee. In September, 1945, while employed at a dry cleaning establishment in the town of Union, he was approached by Whitlock, Sr., with reference to working at the filling station above mentioned located at the corner of Pinckney and Academy Streets. Kirby agreed to do so and within a few days began operating this station at a salary of $25.00 per week. The volume of business increased and four or five months later his salary was raised to $50.00 a week. This arrangement continued until January 1, 1947, at which time Whitlock, Sr., orally rented the premises, on a month to month basis, to Kirby who then took over the operation of the station for his own account. An inventory was taken of the stock of goods and merchandise, including the gasoline and oil on hand, which was sold to Kirby for $835.20 cash. In August or September, 1947, at Whitlock's insistence, Kirby bought the fixtures and equipment at the filling station for $1,100.00. Previous to that time he had had the use of this equipment as a part of the rental agreement. At first the rent was fixed at 1 ¢ a gallon which was added to the amount of Kirby's invoices and included in the checks issued by him to Gulf when the gasoline was delivered. Later the rent was fixed at $150.00 a month and paid by adding 1 1/2 ¢ a gallon to the invoices. In Whitlock's accounting to Gulf, he would deduct the 1 1/2 ¢ and credit same to Kirby's rent account. If this amounted to less than $150.00 in any month, Kirby paid the difference to Whitlock and if it produced more than $150.00, the excess was applied on the purchase price of the equipment. Kirby didn't have the money to pay the $1,100.00 for the fixtures and equipment and it was agreed that this could be done by applying all amounts realized from the 1 1/2 ¢ a gallon, in excess of $150.00 a month, as payments on equipment. Kirby also rented the back part of the building, used as a garage, for $50.00 a month, which was paid direct to Whitlock.

During the early part of June, 1948, Fred R. Lawrence, area sales representative of Gulf, approached Kirby in an effort to induce him to enter into an advertising program for a twelve months' period. Kirby informed Lawrence that he had no assurance that he could operate the station for that length of time, whereupon Lawrence stated that if he entered into this program arrangements would be made to enable him to continue to operate the station for a year. Lawrence said that he would get Kirby a contract so that "nobody couldn't move me out of that place for a period of twelve months." Relying on these promises, Kirby agreed to enter into the advertising agreement, which was to cost $49.50 for the ensuing year. Kirby gave Lawrence a check for $9.50 and the balance of $40.00 was to be paid in installments of $10.00 every three months. As a part of this advertising program. Kirby was to furnish Gulf with the names of his customers to whom various types of advertising material were to be sent, including Christmas cards showing Kirby's name and place of business. Subsequently Lawrence and Whitlock came to plaintiff's station to obtain the list of customers and approximately 150 names were turned over to Lawrence so that Gulf could mail to these customers Christmas cards and other advertising matter.

All of these agreements were promptly forwarded by Whitlock to the district manager in Greenville who signed same but Kirby was not furnished with copies. According to Kirby, no notice was ever given by Gulf of a desire to terminate any of the foregoing contracts.

On or about August 1, 1948, Kirby was called by Whitlock to the Gulf bulk plant and told that he would have to purchase $2,200.00 worth of tires, tubes, batteries and supplies. A little later Whitlock and Lawrence came to Kirby's filling station and demanded that he purchase this $2,200.00 worth of merchandise. Kirby stated that he was not financially able to do so. The conversation then became quite heated. Lawrence told Kirby that he would have to buy or "there was going to be trouble." Finally, as they were leaving, Whitlock warned Kirby, "There will be other arrangements made if you don't purchase the merchandise."

On August 26, 1948 Whitlock, Sr., notified Kirby by registered mail that he had "worked out other plans for the filling station and garage buildings" and that Kirby's lease would be cancelled as of December 31, 1948. Kirby was also requested to make his plans to vacate the premises and surrender possession by that time. Soon thereafter Kirby saw Whitlock, Sr., and told him that he had a lease for a year and was not going to vacate.

Whitlock, Jr., testified that about the middle of September, 1948, his father inquired whether he would be interested in taking over the service station in controversy on January 1, 1949. He replied that he would think it over and give an answer when he returned from his vacation. He says that during the latter part of September he advised his father that he would accept the proposition. He thereupon gave notice to the Eagle Grocery Company, for whom he was then working, that he would discontinue his employment with them on November 1st. On this date he commenced working for his father at the Gulf plant at a salary of $50.00 a week. He claims that during November he went through the credit files at the Gulf plant and got a list of the customers and requested his father to order some Christmas cards. He further testified that when these cards came in they only contained the name and location of the filling station and he had a local printer add his name as owner and just before Christmas mailed the cards to the list of customers which he had obtained from his father's credit files.

Meanwhile on November 30, 1948, Gulf endeavored to cancel the advertising contract with Kirby and sent him a check for $9.50, the amount paid when he entered into the advertising agreement, but Kirby refused to cash the check and never agreed to a cancellation of the advertising agreement.

A number of the Christmas cards mailed by Whitlock, Jr., were sent to customers of Kirby with the following printed thereon: "Gulf Service Station, N. Pinckney & Academy Streets, Union, S.C. Dudley J. Whitlock, Jr., Owner." Several of these cards were later shown to Kirby by his customers.

On or about December 27, 1948, Kirby went to the Greenville office of the Gulf plant and requested the district manager, H.C. Davis, to furnish him with copies of the four contracts made with Gulf the previous July, stating that he had never received these agreements. Davis seemed surprised and requested his stenographer to make copies. This required several hours. After the work was done, Davis decided that he should telephone his superior in Atlanta with reference to turning over the copies to Kirby. He was instructed not to do so. Finally, ...


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