McAllister v. Graham, APAC-C

• Decision Date: 20 November 1985
• Docket Number: APAC-C,No. 0601,0601
• Citation: 339 S.E.2d 154,287 S.C. 455
• Parties: Norman McALLISTER, Appellant, v. Samuel (NMN) GRAHAM andarolina, Inc., of whom arolina, Inc., is Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 154

339 S.E.2d 154

287 S.C. 455

Norman McALLISTER, Appellant, v. Samuel (NMN) GRAHAM and APAC-Carolina, Inc., of whom APAC-Carolina, Inc., is Respondent.

No. 0601.

Court of Appeals of South Carolina.

Heard Nov. 20, 1985.

Decided Jan. 2, 1986.

Jack W. Lawson, Jr., Florence, for appellant.

Rodney C. Jernigan, Jr., Florence, for respondent.

GARDNER, Judge:

Summary judgment was granted the defendant in this personal injury action arising from an automobile wreck. We affirm.

Plaintiff McAllister was injured when his automobile collided with a truck owned by Defendant APAC and driven by its employee, Graham. Graham had worked for APAC and its predecessor since the mid 1960's. In 1979 or 1980 the employer furnished Graham with a company pickup truck and allowed him to drive it between his home in Lake City and wherever the job site happened to be. He was given clear instructions, which he understood, never to operate the vehicle from the time he arrived at home at the end of a work day to the time he left for work the next work day. He was instructed not to drink alcohol while on the job, and was forbidden to operate the vehicle while under the influence. The consequence for violation of these rules was dismissal.

The collision occurred in Florence, S.C., on a Sunday at about 10:00 p.m. Graham had visited his son at a Florence hospital that evening, and had driven the truck from his home in Lake City to Florence earlier that day. He intended to leave for his work site in North Carolina from the hospital the following morning at about 4:00 or 5:00 a.m. The collision occurred when Graham went out to a doughnut shop for some coffee. He intended to return to the hospital after getting the coffee.

The record discloses that Graham was convicted of driving under the influence at the time of the accident. He described his activity on the evening of the accident as "purely personal."

Graham had a prior conviction for DUI in 1971. For purposes of this appeal, we assume that APAC either had actual or constructive notice of this 1971 conviction for DUI.

At issue on appeal are (1) whether the evidence of record is susceptible of the inference that Graham was acting within the scope of his employment at the time of the accident and (2) whether there is evidence of record to support a cause of action for negligent entrustment of a vehicle.

Graham argues that because of the clear markings on the APAC truck that it belonged to APAC and that under the doctrine of apparent authority there was evidence enough to submit the question of agency to the jury. Graham cites Fernander v. Thigpen, et al., 278 S.C. 140, 293 S.E.2d 424 (1982). We hold Fernander is not applicable to this case.

In Fernander plaintiff's intestate, Brenda Fernander, was fatally injured in an automobile accident while she was a passenger in a car driven by Cecil Thigpen, assistant manager of Burger Chef in Sumter, where she was an employee. On the evening of the accident Brenda had worked late at the Burger Chef and when her father called concerning the late hour and his coming for Brenda, the assistant manager told her father not to come for Brenda, but stated, he would bring her home. While Thigpen was driving Brenda home, an accident occurred and Brenda was killed. The question presented the Supreme Court was whether there was evidence that Thigpen was acting in the course and scope of his employment by Burger Chef at the time of the accident. ...