*1 Durden, v. S. (2d) 587, 590-91 264 C. We can find prejudicial no error appellant which denied a fair trial. Accordingly, judgment lower is court
Affirmed. J., Lewis, C. and Littlejohn, JJ., Ness Harwell, concur. FERNANDER,
Doris L. Fernander, Administratrix of Estate of Brenda Appellant, THIGPEN, Foods, Inc., Cecil A & H Chef Systems, Inc., Systems, Inc., Respondent. of which
(293 (2d) 424) S. E. *2 Schwartz, Jr., Edward V.Atkinson and Sumter, Ramon for appellant. Erter, Jr., Sumter, respondent. Jack W. for 16, June 1982.
Ness, Justice:
Appellant, appeals Fernander granting summary an order judgment respondent, in Burger favor Systems, Chef Inc. any agency lower court denied relationship flowing from Burger Systems, disagree Chef Inc. We and reverse. fatally
Brenda Fernander injured was in an automobile accident while passenger she was a in a car driven Cecil Thigpen, manager assistant Burger Sumter, in Chef where she employee. was an evening On the of the accident Brenda had Burger worked late at the Chef and when her concerning father called the late coming hour and his for Brenda, manager the assistant told Mr. Fernander not Brenda, stated, come for but he would bring her home. Brenda riding was killed while home with Thigpen. wrongful
Deceased’s estate instituted death and survival against Thigpen, Burger Chef, Inc., actions Foods, and A &H Burger Chef franchisee Sumter. The trial court denied liability as to Chef agreement based on their franchise Foods, H with A & Inc.1 1Harold R. Blevins and Noredda are A &H Blevins the sole stockholders of
Foods in Sumter. any First, two issues. whether there
This case raises Burger Chef and agency relationship between evidence of an Foods; second, agreement A & H whether the franchise any to relieve between them sufficient liability. ordinarily agency should
Generally, “[questions of j udgment there are summary where be resolved agency relation giving rise to an inference of an facts Kelly Play Air, Inc., 274 added.) & ship.” (Emphasis Reid v. Howard, 271 171, 174, 262 (2d) (1980); Jamison v. S. C. S. 385, 247 E. S. C. held the franchise between
Here the trial court rely- relationship, parties as to their business conclusive Holiday Inns, Murphy Va. ing upon the decision (1975)2 219 S. E. Murphy in present distinguished from hold the case is First, respects. Murphy plaintiff offered crucial two licensing agreement of an rela- only the as evidence solely upon tionship, decision and the court based its *3 by testimony agreement. In here direct was offered contrast “Murphy, therefore, agency. will several witnesses to show solely plaintiff upon the dispositive unless the relies not be Inns, Hayward Holiday F. v. 459 licensing agreement.” 1978). Supp. (Va. 634 at 636 the Murphy opinion not address issue of
Secondly, did the properly authority as the issue was apparent or ostensible (2d) E. Murphy, supra 219 S. at 875. court. raised before the Murphy applicable here. Thus is not to allow the present the trial court refused
In the case j ury to the apparent agency to be submitted of plaintiff was solely on the fact that the deceased based this was error since employee of the franchisee. We think an scope employment of her injured the decedent was not the as to whether remains and moreover since a issue factual regardless apparent agent Burger Chef Thigpen was an of of . party injured the status the of agreement, Murphy Virginia Supreme a license the Court found that In “Holiday subject operator permits Inn” of a motel to use the name which the conditions, principal-agent created no or master-servant to certain terms and relationship.
Generally agency may implied may be and inferred circumstantially proved by pur the the be conduct of agent exhibiting pretense authority ported of with alleged of knowledge principal. the Fochtman v. Clanton’s Sales, (2d) E. Auto 233 S. C. Auction apparent authority provides that the doctrine agent acts principal is bound of its when it has agent position placed persons in such a knowledgeable ordinary prudence, reasonably with business customs, usages agent are led believe the has certain they agent with the on that turn deal based Sales, supra. assumption. Fochtman v. Auto Clanton’s Auction Digest, Principal Agent, Key generally, West’s General & See #99. presented direct plaintiff
Here the evidence this issue. on Thigpen, manager restaurant, Cecil assistant of the thought Burger he for testified he worked Chef and further thought Burger Chef was A & H Foods. witness, McCrae, employee
Another Michael an of A H& thought Burger Foods also stated he he worked for Chef Corporation.
Moreover, physical appearance building dis- played Burger sign, the distinctive Chef and the business used napkins, advertising. Chef uniforms and
Obviously, Foods, all of A this evidence infers & H Inc. was provision an Corporation despite agreement requiring A & H Foods remain independent an contractor.
A relationship may true be established showing apparent evidence or implied authority, parties even have where entered an Texaco, Inc., contrary. (4th Burriss v. 361 F. Cir. Rowe, al., 1966); et 192 S. C. Hubbard 5 S. *4 Circuit, (1939). Burriss, in supra: The Fourth stated law, South “Under Carolina the a consign- terms of agreement ment are conclusive on the of contractor, independent where there [beyond] is evidence the contract which establishes agency a true relation- ship.” (Emphasis added.) Texaco, supra, Burriss v. 172; Rowe, supra. Hubbard v. at
The determine is whether or not the test to right purported principal to the conduct has control agent. alleged his Id. agreement A shows review of the terms of Chef, right to the detailed Inc. retained the control enterprise H operation of so that A & Foods was fact Sumter, agent doing Chefs South Caro- business lina. the res-
Burger Chef retained control
“the Trademarks”
used,
menu,
service,
food
quality
and
taurant
food,
preparing the
equipment
employed in
manner and
to be
and,
daily
policies of the
importantly,
operating
most
management
employees. Para-
including
of the
restaurant
right
gives Burger
graph
agreement
10.2
require-
require
personnel
“comply with all reasonable
all
50, 39-40.)
f.
added.) (Tr.
(Emphasis
ments ...”
them.
made
thirty
approximately
entirety
The
covers
of this
thirty-eight particular areas.
transcript pages and lists
jury
create
We find sufficient evidence
the record to
relationship
any agency
existed between
issue
to whether
as
Guignard
A &H
Brick Works Allen
Burger Chef and
Foods.
Hence,
University,
sum
155 S. Ct.
We Reversed and remanded. JJ., J.,C. and concur. Harwell,
Lewis, Littlejohn JJ., dissent. Gregory, Littlejohn JJ., (dissenting): Gregory, respectfully order of the dissent and would affirm the Finney, A. Ernest Jr. Honorable agreement, Systems, Inc. Burger Chef In the franchise granted the non- to Harold R. Blevins and Noredda Blevins exclusive, company trade- non-assignable right to use certain marks, rights in dis- property marks service and industrial agree- beverage pensing food and from the restaurant. company itself to use certain ment characterizes as a license res- marks, with a etc. in connection trademarks and service independent sought operate as taurant that the Blevins agree- company. The employees not as contractors and
145 independent remain the Blevins shall specifies that ment agent of to act as an have no and shall contractors relationship agreement create company, shall the nor agreement fur- principal-agent. The employer-employee or may franchisees persons whom the provides that all ther employees and not their own servants and engage shall be Burger Chef. those of agree- argues that the franchise Plaintiff-Appellant
The Foods, A H authority and control of & gave Burger Chef ment Blevins, by as to establish a master- operated such which, turn, in made relationship, principal-agent servant or defendant, Thigpen) employee (the individual their Chef. Virginia was faced with the same Supreme The Court of 490, Holiday Inns, Inc, Murphy 216 Va. argument deciding as follows: (1975) E. the issue upon Where, here, Non rests question Vel as a there- deducible and the inferences written documents law, from, construc- question for the exclusively for the Court. written documents is tion of omitted.) (Citations Virginia Court further said: principal
Here, fea- the license contains contract, including regula- typical tures name,” “brand tory provisions. Defendant owned the trademark, “sys- with the other assets associated Defendant Betsy-Len the sales “outlet.” owned tem.” Betsy-Len Betsy-Len use its assets. agreed to allow Betsy-Len privilege. retained pay a fee for that agreed to “risk of loss.” With “right profit” and bore the defendant’s trademark manner which respect to the used, parties agreed to to be assets were both and other operation. rules of regulatory certain regulatory provi- carefully all of the Having considered opinion they that agreement, we are of the sions right or to control the methods gave defendant no ‘control work,’ Whitaker, Va. Wells v. doing or details of therefore, and, (1966), 616, 624, 151 S. principal-agent no or agree with the trial court that relationship created. S. E. master-servant Id. 219 (2d) at 877. by recognize agency may proved evidence be direct the two. evidence a combination of circumstantial or *6 authority play only into when apparent
The law of comes theory a upon The which contractual matters are involved. one actual principal may held for activities of without be may hold estoppel. One not arises under the law of apparent authority causing a third person having out a as thinking agent him him to an then party to deal with be relationship estopped. be deny the because he should Under and, torts, aggrieved person law of the is not mislead accordingly, alleged principal cannot be held unless principal-agency proves a direct and circumstantial evidence relationship. agree may gain judge the trial that Plaintiff with apparent authority. from He said:
comfort the law Plaintiff contends that the record contains a Thigpen of fact to whether not individual defendant as apparent concept an Chef. The was authority depends apparent upon the manifestations party parties lead third to believe another is one which Texaco, concept recognized in agent. This was Gizzi v. his case, Gizzi, steady In Mr. 437F. station, in a patron Texaco service became interested of a opera- offered him the station Volkswagon Van working put good the vehicle tor. Hinman offered delivery Gizzi involved in a collision became order. After Hinman, He of the brakes. sued the failure because of equip- who owned operator and Texaco certain station theory liability premises. on of Texaco ment apparent Hinman au- had clothed with that Texaco authority thinking thority had on that and Gizzi relied Gizzi, repairs. Texaco stand behind the In would Court said: person against
In for the order third recover principal, he must relied on the of au- have indicia thority originated by principal, such reliance must have been reasonable under the circumstances. (Citation omitted.) me, pur- the actions before Gizzi involved a
Unlike (sic) product “apparently” of a under the chaser sole upon trademark who relied the franchisor to product. its has failed to cite stand behind Plaintiff employee reported plaintiff was an cases where the successfully apparent agency an franchisee and asserted theory impose liability as a means to on franchisor. Express In the case of Gobel v. American Railroad Com pany, (1923), 124S. C. S. 900 this matter treated as follows: agent may engaged
An while commit a tort delegated scope agency, him within the business of his principal damages. for which the will be liable in Such an creating act involves no element of a new contractual *7 principal person, by relation between the and the third representations agent which the of the would induce the situation, person change his thereby, upon third principle estoppel, principal. of bind the Hence a principal damages held liable in cannot be for the tort of agent unless acting his was at the time within scope agency. the actual Morse, is discussed Fox v. 255Minn. (1959) following: (2d) N. W. 637 wherein we find the apparent some discussion defendant of There is authority estoppel an authority. Apparent which rests on authority party’s on reliance deny based a third on the authority permitted by principal appearance of is not injured involved here. None of tenants the fire any upon appearance authority. claim reliance such of 148 1029, Henderson, Co. v. 232 Ark.
In Curtis Circulation (1961), the court said: S. W. authority’
Further,
scope of
‘apparent
has
the doctrine
has
application in tort cases unless there
been reliance
no
authority
injury
upon
which caused
com-
apparent
265,
Agency
Sec.
plained of. See Restatement
2, p. 575,
page
same
and comment on
at
576.
Subsection
465,
Berg,
(1939),
Minn.
For reliance authority resulting holding from out than fact rather authority by holding is of estoppel. out no That because party relies thereon. See importance a third until Co., Mortgage 164 Minn. Stockyards & Trust Eberlein v. 134, Kellogg, 323, 961; 195 Minn. N. Karon v. 204 W. injury ordinary personal the in- In the case N. W. 861. jured person rely upon kind does not authority is getting therefore essen- hurt. Proof of actual Mechem, recovery. Restatement, Agency, 265;2 § tial ed.) 1858, To Agency (2 this there are some §§ 1859. Restatement, exceptions. Agency, §§ 267. opinion summary judgment in favor are of the genuine appropriate was no because there Burger Chef remaining. fact material issue of affirm. We would *8 RIDDLE, STATE, Respondent, Appellant. v. Daniel C. 795)
(292 S. E.