McDaniel v. Gulf Oil Corp.

• Decision Date: 21 January 1944
• Docket Number: 15615.
• Parties: McDANIEL v. GULF OIL CORPORATION.
• Court: South Carolina Supreme Court

28 S.E.2d 815

204 S.C. 186

McDANIEL v. GULF OIL CORPORATION.

No. 15615.

Supreme Court of South Carolina

January 21, 1944

Raymond Schwartz, of Sumter, for appellant.

L D. Jennings, of Sumter, for respondent.

BAKER Associate Justice.

I concur in so much of the opinion of Mr. Justice STUKES as holds that the appellant, Gulf Oil Corporation, is engaged in business in Sumter County, South Carolina, and that A. T Heath, the distributor of appellant's products, is its agent upon whom process may be served.

But the summons in this action was not served upon A. T. Heath. It was served by the delivery of a copy thereof to H. Q. Heath an employee of A. T. Heath, and responsible solely to A. T. Heath for his acts. It matters not that H. Q. Heath was employed at the bulk plant of the appellant, and was there served. He is neither the agent nor an employee of the appellant. Section 434, Code of Civil Procedure, 1942; Googe v. Speaks et al., 194 S.C. 206, 9 S.E.2d 439; Coker v. Sinclair Refining Co., 203 S.C. 13, 25 S.E.2d 894.

It is my opinion that the service of the process should be set aside and the order of the Circuit Court reversed, but only for the reason that it was not served upon an agent of the appellant.

FISHBURNE, A. J., and WM. H. GRIMBALL and L. D. LIDE, A. A. JJ., concur.

STUKES A. J., dissents.

STUKES, Associate Justice (dissenting).

Plaintiff, who is the respondent here, began his action in the Court of Common Pleas for Sumter County for damages for alleged false arrest against Gulf Refining Company by service of summons and complaint upon H. Q. Heath on March 1, 1943. On March 19th thereafter Gulf Oil Corporation entered a special appearance and filed an affidavit dated March 12th, by G. E. Millican, Assistant Division Manager of the Atlanta Division of Gulf Oil Corporation, wherein it was recited that the latter was the successor of Gulf Refining Company and the grantee of all of its property. Other important contents of this affidavit will be later stated. On the day of the service of the papers constituting this special appearance plaintiff served an amended, unverified complaint in which Gulf Oil Corporation was named as defendant.

In the amended complaint it was alleged that defendant is a Pennsylvania corporation engaged in the sale of gasoline, oil and other merchandise in Sumter County, South Carolina, with offices, officers and agents, tanks and other equipment used in the business, located in said county; that it advertised its business under the name of Gulf Refining Company and its place of business was so listed in the Sumter telephone directory, but that plaintiff is informed and believes that Gulf Oil Corporation has purchased the property, including that in operation in Sumter County; and that Messrs. H. Q. Heath and Dave Cuttino were employed by defendant and carried on its business at its oil and gasoline plant in the city and county of Sumter.

Upon the service of the amended pleadings the substituted defendant moved for an order setting aside the service of process upon the ground that the defendant is not doing business in Sumter County, is not domesticated there and has no agent or employee and does not maintain an office there, and by its notice to plaintiff informed him that "for the purpose of this motion the defendant will use the summons and complaint and amended complaint and the affidavits attached (to the notice)."

The latter were affidavits by A. T. Heath to the effect that he is "the exclusive distributor for Gulf Oil Products," that is products manufactured and sold by the Gulf Oil Corporation; that he is not "agent, servant, employee or representative of the Gulf Oil Corporation, but that he has a contract with the same, which was formerly the Gulf Refining Company, to exclusively sell its products in Sumter County;" that he pays all taxes upon the business and "furnishes his own equipment, drays, trucks, tank wagons, etc., and employs and discharges his servants, agents and employees at his own will, without the sanction, approval or knowledge of the Gulf Oil Corporation;" with other allegations to the same effect and that neither he nor any one of his employees is the agent, servant or employee of the defendant; that the distribution equipment bears his name, "A. T. Heath, Distributor of Gulf Oil Products;" that the bank account is in the name of A. T. Heath, Distributor, and only he, or some person designated by him, can sign checks thereon, in which account defendant has no interest; and that deponent has never held himself out to be the agent of the defendant but for ten years or more "has always advertised himself independently as distributor of Gulf Oil Products."

Affidavits adopting the allegations of that just stated were also made by H. Q. Heath and D. W. Cuttino, Jr., the former alleging that he is employed by his father, A. T. Heath, "who is sole distributor for Gulf Oil Products in Sumter County, South Carolina," and manages the business; and the latter was to the same effect and that he (Cuttino) is clerk and bookkeeper employed by A. T. Heath, who he also knows is not the agent of defendant, and that this deponent (D. W. Cuttino, Jr.,) has authority to sign checks upon the bank account vested in him by his employer, A. T. Heath, and that defendant has no interest in the funds or account and has never attempted to exercise such.

Mr Millican made another affidavit, this dated April 12, 1943, in which he again states his capacity to be Assistant Division Manager of the Atlanta Division of Gulf Oil Corporation, and to the effect that the other affiants are not agents or employees of the corporation and expressly that A. T. Heath is not such an agent; and that defendant does not have or maintain an agent or office in Sumter County, "but does own property and maintains...