Gardner v. Campbell

• Decision Date: 12 November 1971
• Docket Number: No. 19321,19321
• Citation: 184 S.E.2d 700,257 S.C. 209
• Court: South Carolina Supreme Court
• Parties: Donald H. GARDNER, Appellant, v. Nicholas Ross CAMPBELL and Metropolitan Life Insurance Company, Respondents.

Page 700

184 S.E.2d 700

257 S.C. 209

Donald H. GARDNER, Appellant, v. Nicholas Ross CAMPBELL and Metropolitan Life Insurance

Company, Respondents.

No. 19321.

Supreme Court of South Carolina.

Nov. 12, 1971.

A. Milling Blalock and Peter D. Hyman, of Hyman, Morgan, Brown & Blalock, Florence, for appellant.

C. Weston Houck, Florence, for respondents.

BUSSEY, Justice:

The defendant Campbell is an insurance agent employed by Metropolitan Life Insurance Company. On August 24, 1967, plaintiff sustained certain injuries when an automobile owned and operated by Campbell collided with plaintiff's parked vehicle. In this action plaintiff seeks to recover against Campbell and against Metropolitan under the doctrine of respondeat superior.

Pursuant to Circuit Court Rule No. 44, Metropolitan moved for summary judgment on the ground that Campbell was not acting as the agent, servant or employee of Metropolitan at the time of the collision and there was no genuine issue of fact thereabout. Such motion was based upon the pleadings and the deposition of the defendant Campbell. Plaintiff resisted the motion, relying upon the pleadings, the deposition of Campbell and also a deposition of A. Peter Anselmo, District Manager of Metropolitan in Florence. The appeal is from an order granting Metropolitan's motion.

Plaintiff-appellant apparently concedes that the basic material facts are not in dispute, but asserts that they give rise to more than one reasonable inference as to whether or not Campbell was acting within the scope of his employment or agency at the time of the collision, thus giving rise to an issue for determination by a jury and that, accordingly, the lower court was in error in granting summary judgment.

As our Rule 44 is new, it is, of course, appropriate to look to persuasive authority from other jurisdictions having essentially the same rule, as to the proper interpretation and application of our rule. Appellant quotes the following from Phoenix Savings and Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245 (4th Cir. 1967):

'Summary judgment under Rule 56 should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. This is true even where there is no dispute as to the evidentiary facts but only as to the conclusions or inferences to be drawn therefrom, and the 'party opposing a motion for summary judgment is entitled to all favorable inferences which can be drawn from the evidence.' Cram v. Sun Insurance Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967).'

The foregoing would appear to be substantially in accord with the weight of authority elsewhere. See 49 C.J.S. Judgments § 219 et seq.

The undisputed facts in the case as gleaned from both depositions are as follows. Campbell at the time of his deposition had been employed by Metropolitan for eighteen years. Most of his time was spent traveling and soliciting insurance. He provided his own automobile and worked on a commission basis. He kept essential working papers and supplies in his automobile at all times. He had a fixed territory but made his own schedule and set own hours. If, however, he wished to take a whole day off, he was required to notify his superior, but the employer kept no record of such days off. Pursuant to such requirement, Campbell a day or two prior to the collision notified Mr. Anselmo that he was taking August 24th off since such was his birthday.

Campbell usually took off on his birthday and did no work thereon. This...