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Page v. Boone's Transport, corrected 5-19-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 105
Docket:	Ken-97-652	
Argued:	April 7, 1998	
Decided:	May 13, 1998	

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.

EDWARD W. PAGE et al. v. BOONE'S TRANSPORT, LTD.


DANA, J.

	[¶1]  Edward W. and Gloria J. Page, individually and as legal guardians
of Robert A. Page, appeal from a summary judgment entered in the Superior
Court (Kennebec County, Marden, J.) in favor of Boone's Transport, Ltd.
contending that the record contains a genuine issue of material fact that
precludes the entry of a summary judgment.{1}  We disagree and affirm the
judgment.
	[¶2]  The Pages were occupants of a motor vehicle that was struck by a
tractor trailer owned by Conrad W. Neilson and operated by Richard A.
Wheeler.  The Pages filed a complaint against Boone's Transport, Ltd.,{2}
claiming that Neilson was an agent of Boone's, Wheeler was an employee of
Neilson, the accident was a result of Wheeler's negligence, and Boone's was
responsible for the negligence of its agent's employee.
	[¶3]  Boone's moved for a summary judgment claiming that the Pages
failed to establish that Neilson was its agent.  In accordance with M.R. Civ. P.
7(d)(1) Boone's submitted a statement of material facts and affidavits
establishing that Boone's did not own or lease the tractor trailer involved in
the accident and that neither Neilson nor Wheeler were agents or
employees of Boone's.{3}
	[¶4]  In response, the Pages filed their own statement of material facts
in accordance with M.R. Civ. P. 7(d)(2).  The only evidence supporting their
claim of agency, however, was a deposition statement by Neilson
acknowledging that at the time of the accident a sign on the side of the
truck read "Leased to:  Boone's Transport, Ltd." and his statement that he
placed the sign on the truck because "like we were just working, like, for
them.  We didn't haul for anybody else."  No other support for the agency
statement was offered.{4}  The Pages offered no testimony stating that the
sign on the truck was accurate and conceded that Neilson had his own
insurance and license on the truck, and that Neilson and Wheeler were not
employees of Boone's on the date of the accident.  Because the Pages failed
to present any evidence establishing an agency relationship, or any other
relationship, on which Boone's could be held liable for the Pages' injuries,
the court concluded there was no issue of material fact in dispute and
granted a summary judgment in favor of Boone's.  Maine State Academy of
Hair Design, Inc. v. Commercial Union Ins. Co., 1997 ME 188, ¶ 5, 699 A.2d
1153, 1156 ("A summary judgment is properly granted only when the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with any affidavits, show there is no genuine issue of material
fact."); Biette v. Scott Dugas Trucking and Excavating, Inc., 676 A.2d 490,
494 (Me. 1996) ("If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted."); M.R. Civ. P. 56(c).
	[¶5]  In order to hold Boone's liable, the Pages were required to
establish an agency relationship between Boone's and Neilson and/or
Wheeler.  "Agency is a fiduciary relationship resulting from an agreement
that one party will act on behalf of, and subject to the control of the other." 
State v. Prior, 662 A.2d 225, 227 (Me. 1995).  See Libby v. Concord Gen.
Mut. Ins. Co., 452 A.2d 979 (Me. 1982).  The agreement must involve a
manifestation of consent by one person to another.  Libby, 452 A.2d at 981;
Restatement (Second) of Agency § 1.1 (1958).  It is the element of
continuous subjection to the will of the principal which distinguishes the
agent from other fiduciaries.  Id. at cmt. b.  Consent and control are required
elements of an agency relationship.  Additionally, we have long recognized
that an agency relationship cannot be established solely by the agent's
declarations.  See Eaton v. Granite State Provident Ass'n, 89 Me. 58, 60, 35
A. 1015, 1015 (1896); Libby, 452 A.2d at 982 (the authority necessary to
establish agency depends on "manifestation of consent by the principal").
	[¶6]  The Pages offered no proof that Neilson and Wheeler were
subject to Boone's control on the date of the accident.  They rely on only two
pieces of evidence in an attempt to withstand the summary judgment
motion.  Notwithstanding the legend on the truck, the Pages offered no
evidence that the truck was actually leased to Boone's and, therefore, did
not controvert the three affidavits establishing that the truck was not, in
fact, leased to Boone's.  Neilson's statement that he worked exclusively for
Boone's, even if true, does not constitute control by Boone's.  The parties
agreed that the truck's insurance and license were held by Neilson, not
Boone's.  Thus, no evidence of control was presented by the Pages.  The
evidence presented is, at most, merely colorable and is insufficient to
establish an agency relationship between Neilson and Boone's.
	[¶7]  The court, therefore, properly concluded that Boone's was
entitled to a summary judgment because the Pages failed to present a
genuine issue of material fact concerning the relationship between Boone's
and Neilson.
	The entry is:
					Judgment affirmed.

Attorney for plaintiffs: Donald Grey Lowry, Esq. John W. Philbrick, Esq. Benjamin A. Lowry, Esq., (orally) Lowry & Associates P O Box 9713-346 Portland, ME 04104 Attorney for defendant: William J. Kelleher, Esq., (orally) William J. Kelleher, P.A. 7 East Crescent Street Augusta, ME 04330-7433
FOOTNOTES******************************** {1} Boone's Transport, Ltd. cross-appeals from the court's denial of its motions to dismiss. Because of our determination on the summary judgment claim, we do not consider the cross-appeal. {2} Boone's is a Canadian corporation with a principal place of business in Woodstock, New Brunswick, Canada. {3} Boone's submitted affidavits from Ingham K. Bryanton (president and general manager of Big Wheels Transport & Leasing, Ltd., which acquired and became the sole owner of Boone's on November 30, 1989), Robert J. McCormick (general manager of Boone's in 1990), and Neilson. {4} The Pages expressed intentions to find evidence of an agency relationship in their opposition to the summary judgment motion and statement of material facts. The Pages' supplemental memorandum did not provide additional evidence that was supported by the record. Mere intentions to find evidence that an agency relationship existed are not sufficient to withstand a summary judgment motion.