Haberer v. Radio Shack

1996 SD 130, 555 N.W.2d 606, 1996 S.D. LEXIS 137
CourtSouth Dakota Supreme Court
DecidedOctober 30, 1996
DocketNone
StatusPublished
Cited by7 cases

This text of 1996 SD 130 (Haberer v. Radio Shack) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haberer v. Radio Shack, 1996 SD 130, 555 N.W.2d 606, 1996 S.D. LEXIS 137 (S.D. 1996).

Opinions

GILBERTSON, Justice

(on reassignment).

[¶ 1] Carney and Merle Haberer (Haberer) appeal a directed verdict in favor of Brick’s TV & Appliance and a jury verdict in favor of Radio Shack. We affirm.

FACTS & PROCEDURE

[¶ 2] Haberer owned the “Showcase,” a bar in Aberdeen, South Dakota. In 1993, Haber-er contacted James Schaunaman to install and upgrade a sound system in the bar, using equipment Haberer already owned. Haber-er first met Schaunaman as a tenant in the apartment building that Haberer managed. Schaunaman had previously installed smoke detectors in the apartment building and repaired a television set for Haberer. At the time Haberer asked Schaunaman to perform the work at the Showcase, Schaunaman was the owner of Brick’s Video, a sole proprietorship having its office in the same building as Brick’s TV & Appliance (Brick’s TV), wMch was owned by Larry Brick. Brick’s Video provided repair service on VCR’s, video equipment, televisions, and audio equipment. Brick’s Video and Brick’s TV share the same address and telephone number.

[¶ 3] Schaunaman installed the sound system at the Showcase. On June 21, 1993, Schaunaman further installed a battery-operated mixer, the device which combines and distributes the signal between the audio source and the amplifiers. Following some problems with the mixer, Schaunaman suggested and installed a Radio Shack AC adapter between the mixer and a power strip. One and a half days later, there were more problems with the sound system. Schaunaman, believing the lead wires were malfunctioning, exchanged them at Radio Shack. He replaced the lead wires again two days later. On July 2, 1993, Schaunaman installed components in the system, including a “Y” adapter.

[¶ 4] On July 4,1993, at approximately 3:00 a.m., Kris Jensen, Haberer’s employee, was in the Showcase and smelled smoke. Jensen contacted the fire department, wMch was [608]*608unable to contain the fire. The Showcase was completely destroyed.

[¶ 5] Haberer filed suit against Radio Shack and Brick’s TV on March 4,1994. He did not sue Sehaunaman, who was doing business as Brick’s Video. Haberer served interrogatories March 20,1995. On April 24, 1995, Radio Shack responded to Haberer’s interrogatory regarding expert witnesses by sending Haberer a list of expert witnesses which included E.P. Hamilton, III. Radio Shack stated these experts would testify regarding the source of the fire and that “Dr. Hamilton has concluded that neither the mixer nor the adapter sold by Radio Shack could have been the cause of the fire.” The answers indicated Radio Shack’s experts relied on physical evidence including the fire scene itself, the adapter removed from the scene, and undamaged mixers and adapters similar to those involved in the fire.

[¶ 6] At trial, lay witnesses and expert witnesses testified regarding the fire’s origin. Haberer’s witnesses testified the fire started in the stage area which held the sound system and then spread to the basement through a hole caused by the malfunctioning Radio Shack equipment. Radio Shack’s experts testified the fire started in the basement and that there were multiple points of origin.

[¶7] Prior to trial, the trial court had denied a motion for summary judgment made by Brick’s TV based on apparent or ostensible agency. At the close of Haberer’s evidence, however, the trial court on its own motion directed a verdict for Brick’s TV. The jury returned a verdict in favor of Radio Shack. Haberer appeals, seeking a reversal of the directed verdict and a new trial against both Brick’s TV and Radio Shack.

ANALYSIS & DECISION

[¶ 8] 1. Whether the trial court erred in granting a directed verdict to Brick’s TV?

[¶ 9] The agency issue presents a two-pronged question. The first prong is whether a question of fact exists regarding ostensible agency between Brick’s TV and Schau-naman. The second prong is whether a question of fact exists regarding reliance by Haberer upon that ostensible agency. The evidence of this case establishes there is a question of fact as to the existence of an agency relationship between Brick’s TV and Sehaunaman. There has been no showing, however, of reliance by Haberer in this regard. Thus, Haberer fails on this second prong.

[¶ 10] In reviewing a trial court’s decision to grant a directed verdict pursuant to SDCL 15-6-50(a), we will presume the determination of the trial court to be correct and will not seek reasons to reverse. Sabag v. Continental South Dakota, 374 N.W.2d 349, 355 (S.D.1985). Upon a motion for a directed verdict, the trial court must determine whether there is “substantial evidence” to allow Haberer as the plaintiff to continue with his cause of action. Haberer v. Rice, 511 N.W.2d 279, 284 (S.D.1994). Thus, for Haberer to establish “substantial evidence” upon the reliance issue, he must bring forth facts to show he either commenced or continued his business relationship with Schauna-man based on a reliance on Schaunaman’s ostensible agency with Brick’s TV. Such evidence is totally lacking from the record, including Haberer’s own testimony which supports a contrary conclusion. With no evi-dentiary dispute, reasonable minds could not differ and a directed verdict was appropriately granted. BankWest, Inc. v. Valentine, 451 N.W.2d 732, 734 (S.D.1990).

[¶ 11] The record reflects Haberer’s initial contact with Sehaunaman was through their acquaintance as tenants at the apartment complex Haberer managed. Haberer and Sehaunaman became friends and Haberer hired Sehaunaman to do some repair work for him personally on a television set and for the apartment complex installing smoke alarms. This work was done approximately six months prior to Haberer’s hiring Schau-naman to work on the sound equipment at the Showcase. Haberer testified when he needed the work done at the Showcase, “I thought of Mr. Sehaunaman and Sehaunaman and I are real good friends. I hope we still are, but we were real good friends. And he came down and I asked him, could you make, you know, a music system out of this?”

[609]*609[¶ 12] SDCL 59-6-3 provides that “[a] principal is bound by acts of his agent under ostensible authority, to those persons only who have in good faith, and without negligence, incurred a liability or parted with value upon the faith thereof.” As long ago as 1929, this Court held that the third party's “knowledge of and reliance upon circumstances tending to show agency” was a prerequisite to the admission into evidence of those circumstances if the third party was claiming ostensible agency. McKean Auto Co. v. O’Marro, 54 S.D. 435, 439, 223 N.W. 354, 356 (1929); see also Karlen v. Butler Mfg. Co., 526 F.2d 1373, 1378 (8th Cir.1975) (applying South Dakota law).

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Haberer v. Radio Shack
1996 SD 130 (South Dakota Supreme Court, 1996)

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Bluebook (online)
1996 SD 130, 555 N.W.2d 606, 1996 S.D. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haberer-v-radio-shack-sd-1996.