Jamison v. Morris

• Citation: 684 S.E.2d 168,385 S.C. 215
• Decision Date: 21 September 2009
• Docket Number: No. 26720.,26720.
• Court: United States State Supreme Court of South Carolina
• Parties: Louis M. JAMISON and Evelyn Jamison, Respondents, v. John M. MORRIS and Kevin Morris d/b/a Morris Texaco Mini Mart, Anderson Oil Co. Inc., Texaco, Inc., and Shell Oil Company, Defendants, of whom John M. Morris and Kevin Morris d/b/a Texaco Mini Mart, Anderson Oil Co. Inc., and Texaco, Inc. are the Appellants.

684 S.E.2d 168

385 S.C. 215

Louis M. JAMISON and Evelyn Jamison, Respondents, v. John M. MORRIS and Kevin Morris d/b/a Morris Texaco Mini Mart, Anderson Oil Co. Inc., Texaco, Inc., and Shell Oil Company, Defendants of whom John M. Morris and Kevin Morris d/b/a Texaco Mini Mart, Anderson Oil Co. Inc., and Texaco, Inc. are the Appellants.

No. 26720.

Supreme Court of South Carolina.

Heard June 23, 2009.

Decided September 21, 2009.

Rehearing Denied November 4, 2009.

C. Mitchell Brown, William C. Wood, Jr., A. Mattison Bogan and Elizabeth H. Campbell, all of Nelson, Mullins, Riley & Scarborough, of Columbia; Rebecca Laffitte, and Robert E. Horner, both of Sowell, Gray, Stepp & Lafitte, all of Columbia; Robert D. Hays, Matthew S. Harman, and W. Ray Persons, all of King & Spalding, of Atlanta; and Robert H. Hood, Deborah H. Sheffield, and James B. Hood, all of Hood Law Firm, of Charleston, for Appellants.

John H. Tiller and Wendy J. Keefer, of Haynsworth Sinkler Boyd, of Charleston, for Appellants.

Matthew Terry Richardson, of Wyche, Burgess, Freeman & Parham, of Columbia; Nicholas Clekis, of Clekis Law Firm, of Charleston; Richard Ness, of Ness & Jett, of Bamberg; Richard S. Rosen and Alex B. Cash, both of Rosen, Rosen & Hagood, of Charleston; Wallace K. Lightsey and Meliah D. Bowers, both of Wyche, Burgess, Freeman & Parham, of Greenville; and William T. Toal and I.S. Leevy Johnson, both of Johnson, Toal & Battiste, of Columbia, for Respondents.

Alphonse M. Alfano, of Bassman, Mitchell & Alfano, of Washington; Charles E. Carpenter, Jr. and Carmen V. Ganjehsani, both of Carpenter Appeals & Trial Support, of Columbia; Daniel Scott Haltiwanger, of Richardson, Patrick, Westbrook & Brickman, of Barnwell; David J. Kaufmann and Kevin M. Shelley, both of Kaufmann, Feiner, Yamen, Gildin & Robbins, both of NY; Douglas S. Kantor and Michael J. Baratz, both of Steptoe & Johnson, of WA; J.R. Murphy and Jeffrey C. Kull, both of Murphy & Grantland, of Columbia; John Thomas Lay, of Ellis, Lawhorne & Sims, of Columbia; Victor E. Schwartz and Cary Silverman, both of Shook, Hardy & Bacon, of Washington; William Cleveland, of Buest, Moore, Smythe & McGee, of Charleston; William Sweeny, III, of Sweeny, Wingate & Barrow, of Columbia; William Lloyd Taylor, of Taylor & Powell, of Kiawah Island, and Robert M. Roach, Jr., of Roach & Newton, of Houston, Texas, all for Amici Curiae.

Justice PLEICONES.

Appellants appeal from a jury verdict finding appellant Mini Mart liable, and appellants Anderson Oil and Texaco, Inc., vicariously liable, for catastrophic injuries suffered by respondent Louis Jamison (Louis) in a one vehicle automobile accident. We reverse the vicarious liability verdicts against Anderson Oil and Texaco, finding no evidence that Mini Mart was their actual agent for purposes of the sale of alcohol to the driver of the car in which Louis was a passenger. We hold that the erroneous admission of expert testimony predicated on unreliable evidence requires reversal of the verdict against Mini Mart.

FACTS

Louis suffered serious injuries rendering him a quadriplegic when he was involved in a one car accident while he was a passenger in a car driven by his nineteen year old cousin Carlos Davis. Carlos, who died as the result of the accident, was allegedly intoxicated at the time of the accident as the result of drinking beer he was alleged to have illegally purchased from appellant Morris' Texaco Mini Mart (Mini Mart). Mini Mart, a Texaco-branded service station, received its gasoline from appellant Anderson Oil Company (Anderson), which in turn purchased Texaco branded gasoline pursuant to a contract between it and Star Enterprises. Anderson is what is known in the industry as a "jobber." Prior to the alleged alcohol sale to Carlos in 2000, the Anderson/Star contract was assigned to Motiva,¹ an L.L.C. created under the laws of Delaware. Motiva is a joint venture between appellant Texaco (Texaco) and Saudi Aramco.

Louis, who was seventeen at the time of the automobile accident, and his mother (Respondent Evelyn Jamison)² sued the appellants. The jury returned a verdict against all three for $30 million actual damages finding Mini Mart negligent and Anderson and Texaco vicariously liable, which verdict was reduced to $27 million as the jury found the appellants 90 % at fault and Louis 10% at fault under comparative negligence principles. Mini Mart, Anderson, and Texaco appeal.

ISSUES

1. Did the trial judge err in denying Anderson's and Texaco's motions for a directed verdict/judgment non obstante veredicto because Jamison did not present any evidence of actual agency to support the vicarious liability verdicts?

2. Did the trial judge err in denying Mini Mart's motion for a directed verdict because there was no evidence of a sale of alcohol?

3. Did the trial judge err in failing to dismiss appellant John Morris from the suit?

4. Did the trial judge commit error in ruling that Dr. Crane's expert testimony was admissible thus requiring a new trial for Mini Mart?

ANALYSIS

1. Directed verdict/JNOV

Anderson and Texaco each argue entitlement to a directed verdict or a JNOV contending there was no evidence that either entity had the right to control Mini Mart's alcohol sales, Mini Mart was therefore not their agent, and thus neither could be vicariously liable. The trial judge directed a verdict on Jamison's apparent agency claims, and submitted the case against Texaco and Anderson to the jury solely on the theory of actual agency.

Under South Carolina law:

The decisive test in determining whether the relation of master and servant exists is whether the purported master has the right or power to direct and control the servant in the performance of his work and in the manner in which the work is to be done. Keitz v. National Paving & Contracting Co., 214 Md. 479, 134 A.2d 296 (1957); see Fernander v. Thigpen, 278 S.C. 140, 144, 293 S.E.2d 424, 426 (1982) ("The test to determine agency is whether or not the purported principal has the right to control the conduct of his alleged agent.") (Emphasis theirs); Young v. Warr, 252 S.C. 179, 189, 165 S.E.2d 797, 802 (1969) ("The general test applied is ... whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment."); DeBerry v. Coker Freight Lines, 234 S.C. 304, 307-08, 108 S.E.2d 114, 116 (1959) ("The right or power of control retained by the person for whom the work is being done is uniformly regarded as the essential criterion for determining whether the workman is an employee....").

Watkins v. Mobil Oil Corp., 291 S.C. 62, 65-66, 352 S.E.2d 284, 286 (Ct.App.1986).

In Watkins, a customer sued Mobil after he was assaulted by the gas station's assistant manager when the customer entered the station to purchase cigarettes. The station was operated by a franchisee, which controlled the station's operations, its employees, and its premises. The Court of Appeals held there was no evidence that Mobil, the franchisor, had the right to control the conduct of the business even though the employees wore Mobil uniforms and the station was Mobil-branded.

The key question here is whether Texaco and/or Anderson, as the jobber, has the right or power to direct the manner or means of the purported agent's work, that is, to control Mini Mart "in the performance of [its] work and the manner in which the work is to be done." Id.; see also Young v. Warr, 252 S.C. 179, 165 S.E.2d 797 (1969).

In an actual agency case, the question is not whether the purported principal could have exercised control over its agent, but whether it did so. Compare Glover v. Boy Scouts of America, 923 P.2d 1383 (Utah 1996) (right to control must rest on facts as they exist, not speculation if different policies had been followed).³ We begin by looking at the three documents which govern the parties' relationships: the Wholesaler Marketing Agreement between Motiva and Anderson, Texaco's Brand Standards, and a Mystery Shopper Program which checks on Mini Mart's compliance with Texaco's Brand Standards. Nothing in the agreement or the Standards creates, on its face, an agency-principal relationship here.

A franchisor is not the principal of a branded gas station franchisee for purposes of all tort liability. Watkins, supra. Moreover, a franchisor is not vicariously liable for a tort committed at an independent gas station unless the plaintiff can show that the franchisor exercised more control over the franchisee than that necessary to ensure uniformity of appearance and quality of services among its franchisees. E.g., Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala. 2003); Vandemark v. McDonald's Corp. 153 N.H. 753, 904 A.2d 627 (2006); Ciup v. Chevron U.S.A., Inc., 122 N.M. 537, 928 P.2d 263 (1996); Pate v. Alian, 49 P.3d 85 (Ok.Ct.App. 2002).

Texaco and Anderson contend that the Brand Standards are designed only to preserve Texaco's trademark and its goodwill. Jamison argues, however, that Texaco's requirements regarding employee appearance⁴ and courtesy⁵ are indicative of control over employees. Compare, e.g., Sipple v. Starr, 205 W.Va. 717, 520 S.E.2d 884 (1999) (jobber vicariously liable where he ordered owner to clean the store, redecorate, obtain a liquor license, and to fire an employee for having bad teeth); Wood v. McDonald's, 166 N.C.App. 48, 603 S.E.2d 539 (2004) (management company of franchisee liable where it hired, fired, and supervised personnel and controlled operations on a daily basis).

In addition to relying on the Brand Standards requirements for employees as proof of control beyond that ordinarily imposed by a franchisor, Jamison points to the Standards' requirements where a Texaco-branded station opts to sell merchandise. In such cases, the Standards require certain displays and hours of operation,⁶ signage,⁷ and that cleanliness and hygiene standards be maintained.⁸

We find nothing in these...