Carlton v. Alabama Dairy Queen, Inc.
| Decision Date | 29 April 1988 |
| Citation | 529 So.2d 921 |
| Parties | Louie J. CARLTON, administrator of the Estate of Linda Pauline Carlton, deceased v. ALABAMA DAIRY QUEEN, INC. and International Dairy Queen, Inc. 86-1200. |
| Court | Alabama Supreme Court |
Thomas W. Bowron II, Birmingham, for appellant.
Eugene P. Stutts and Michael W. Ray of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.
Louie J. Carlton sued Richard Clark Lewis d/b/a Dairy Queen; Alabama Dairy Queen, Inc.; and International Dairy Queen, Inc., seeking damages for the wrongful death of his wife, Linda Pauline Carlton. Carlton's amended complaint alleged that defendants Richard Clark Lewis and Alabama Dairy Queen, Inc., and International Dairy Queen, Inc., (both Dairy Queen corporations are hereafter referred to as "Alabama Dairy Queen") were participants in a joint venture.
Alabama Dairy Queen filed a motion for summary judgment, denying the existence of any evidence to support a finding of a joint venture or agency relationship. The trial court granted the summary judgment which was made final pursuant to A.R.Civ.P. 54(b). Plaintiff appeals.
On March 10, 1985, Linda Pauline Carlton was driving an automobile along Highway 75 near Oneonta, in Blount County. Her automobile slid on an oil spill on the highway and collided with an 18-wheel truck. She was killed.
The plaintiff alleged that on that same day, defendants Richard Clark Lewis d/b/a Dairy Queen and Alabama Dairy Queen, or their agents, were transporting discarded cooking oil products from store number 47 located in Oneonta along Highway 75 near Oneonta. The plaintiff contends that these defendants or their agents caused or allowed the cooking oil to spill along the highway.
Other important provisions of the contract were:
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The contract provided that the store must use a Dairy Queen Freezer, and that Alabama Dairy Queen has the right to require the store to open for business at least 335 days per year. Another important part of the agreement is that Lewis was to pay Alabama Dairy Queen 42 cents over its cost for each gallon of liquid "mix" used in making the dairy product.
Alabama Dairy Queen did not participate in the training of any employees or play any part in the preparation or disposal of non-ice cream foods. Alabama Dairy Queen did not directly participate in any profits and did not participate in any losses incurred by the Oneonta store. Alabama Dairy Queen's profit was derived from the sell of its mix to Lewis.
In order to hold Alabama Dairy Queen vicariously liable for the alleged wrongful acts or omissions of Richard Clark Lewis d/b/a Dairy Queen, the plaintiff asserts that a joint venture existed between Lewis and Alabama Dairy Queen. Under Alabama case law, if the relationship between Lewis and Alabama Dairy Queen is held to be a joint venture, it would be governed by the law of partnerships. Bonded Builders & Supply Co. v. Long, 288 Ala. 669, 264 So.2d 518, (1972); Saunders v. McDonough, 191 Ala. 119, 125, 67 So. 591 (1914).
Partnership law imposes vicarious liability on a partner for the wrongful acts or omissions of other partners in the ordinary course of business, Code 1975, § 10-8-53; this is because partners are agents of one another and are, by the very definition of "agent", acting on behalf of one another and subject to each other's control. See Orr, Jackson & Co. v. Perry, 16 Ala.App. 658, 81 So. 150 (1919). Therefore, in order for joint venturers to be held vicariously liable for one another's negligent acts done within the scope of the joint venture, there must at least be a right to direct and govern the movements and conduct of each other in respect to the undertaking, i.e., there must be mutual agency. See, Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49, 51 (1924); Moore v. Merchants & Planters Bank, 434 So.2d 751 (Ala.1983). In the present case, the real issue is one of agency. Only if Lewis d/b/a Dairy Queen was acting as an agent of Alabama Dairy Queen could vicarious liability be imposed upon Alabama Dairy Queen. The question of agency is a more appropriate focus, than the question of whether there was a joint venture, because agency would be the primary source of liability in the present case.
Summary judgment on the issue of agency is generally inappropriate, because this issue usually is a question to be determined by the trier of fact. However, when a defendant's liability is based on agency, agency may not be presumed; evidence of agency must be presented in response to a defendant's properly supported summary judgment motion, in order for the motion to be defeated. Wood v. Shell Oil Co., 495 So.2d 1034, 1036 (Ala.1986); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The scintilla rule requires only that the plaintiff furnish at least a "scintilla"--which we define as a mere gleam, a glimmer, a spark, the least bit, or the smallest trace of evidence--in support of his complaint. Cheatham v. General Motors Corp., 456 So.2d 1101, 1103 (Ala.Civ.App.1984). This glimmer or spark can come from the evidence directly or from reasonable inferences drawn from the evidence. Id. We will determine whether there is any evidence to support a finding of an agency relationship between Alabama Dairy Queen and Richard Clark Lewis d/b/a Dairy Queen. But first, we must determine what proof is required to show an agency relationship.
The test to be applied in determining the existence of an agency relationship under the doctrine of respondeat superior is whether the alleged principal has control over the manner of the alleged agent's performance. However, the right to determine if an alleged agent is conforming to the requirements of a contract does not, in itself, establish control. Williams v. Tennessee River Pulp & Paper Co., 442 So.2d 20 (Ala.1983); Wood v. Shell Oil Co., 495 So.2d 1034, 1036 (Ala.1986).
First, we will determine whether there is any evidence that the employee in control of the grease tank at the time of this alleged leakage or spillage was acting directly as an agent for Alabama Dairy Queen. If not, we will determine whether the contract results in an agency relationship.
Deposition testimony indicates that Dewayne Morton, assistant manager of Lewis's Dairy Queen store, towed the tank of grease down Highway 75 in order to dispose of it at a farm. His deposition also indicates that the tank was filled with cooking oil gathered from the cooking process. The cooking oil would be gathered at the stove and taken outside and placed...
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