Doris L. FERNANDER, Administratrix of Estate of Brenda Fernander, Appellant, v. Cecil THIGPEN, A & H Foods, Inc., and Burger Chef Systems, Inc., of which Burger Chef Systems, Inc., is Respondent, 278 S.C. 140

Ness, Justice: Appellant, Fernander appeals an order granting

summary judgment in favor of respondent, Burger Chef Systems, Inc. The lower court denied any agency relationship flowing from Burger Chef Systems, Inc. We disagree and reverse. Brenda Fernander was fatally injured in an automobile accident while she was a passenger in a car driven by Cecil Thigpen, assistant manager of the 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 Mr.

Fernander not to come for Brenda, but stated, he would bring her home. Brenda was killed while riding home with Thigpen. Deceased’s estate instituted wrongful death and survival actions against Thigpen, Burger Chef, and A & H Foods, Inc., the Burger Chef franchisee in Sumter. The trial court denied liability as to Burger Chef based on their franchise agreement with A & H Foods, Inc. This case raises two issues.

First, whether there was any evidence of an agency relationship between Burger Chef and A & H Foods; and second, whether the franchise agreement between them is sufficient to relieve Burger Chef of any liability. Generally, “[questions of agency ordinarily should not be resolved by

summary j udgment where there are any facts giving rise to an inference of an agency relationship.” (Emphasis added.) Reid v. Kelly & Play Air, Inc., 274 S. C. 171, 174, 262 S. E. (2d) 24 (1980); Jamison v. Howard, 271 S. C. 385, 247 S. E. (2d) 450 (1978). Here the trial court held the franchise agreement between the parties conclusive as to their business relationship, relying upon the decision in Murphy v. Holiday Inns, Inc., 216 Va. 490, 219 S. E. (2d) 874

(1975) We hold the present case is distinguished from Murphy in two crucial respects. First, in Murphy the plaintiff offered only the licensing agreement as evidence of an agency relationship, and the court based its decision solely upon that agreement. In contrast here direct testimony was offered by several witnesses to show agency. “Murphy, therefore, will not be dispositive unless the plaintiff relies solely upon the licensing agreement.” Hayward v. Holiday Inns, Inc., 459 F. Supp. 634 at 636 (Va. 1978).

Secondly, the Murphy opinion did not address the issue of apparent or ostensible authority as the issue was not properly raised before the court. Murphy, supra 219 S. E. (2d) at 875. Thus Murphy is not applicable here. In the present case the trial court refused to allow the question of apparent agency to be submitted to the j ury based solely on the fact that the deceased plaintiff was an employee of the franchisee.

We think this was error since the decedent was not injured in the scope of her employment and moreover since a factual issue remains as to whether Thigpen was an apparent agent of Burger Chef regardless of the status of the injured party. Generally agency may be implied or inferred and may be circumstantially proved by the conduct of the purported agent exhibiting a pretense of authority with the knowledge of the alleged principal. Fochtman v. Clanton’s Auto Auction Sales, 233 S. C. 581, 106 S. E. (2d) 272 (1958).

The doctrine of apparent authority provides that the principal is bound by the acts of its agent when it has placed the agent in such a position that persons of ordinary prudence, reasonably knowledgeable with business usages and customs, are led to believe the agent has certain authority and they in turn deal with the agent based on that assumption. Fochtman v. Clanton’s Auto Auction Sales, supra. See generally, West’s General Digest, Principal & Agent, Key #99. Here the plaintiff presented direct evidence on this issue.

Cecil Thigpen, the assistant manager of the restaurant, testified he thought he worked for Burger Chef and further thought Burger Chef was A & H Foods. Another witness, Michael McCrae, an employee of A & H Foods also stated he thought he worked for Burger Chef Corporation. Moreover, the physical appearance of the building displayed the distinctive Burger Chef sign, and the business used Burger Chef napkins, uniforms and advertising.

Obviously, all of this evidence infers A & H Foods, Inc. was an agent of the Burger Chef Corporation despite the provision in the franchise agreement requiring A & H Foods to remain an independent contractor. A true agency relationship may be established by showing evidence of apparent or implied authority, even where the parties have entered an agreement to the contrary. Burriss v. Texaco, Inc., 361 F. (2d) 169 (4th Cir. 1966); Hubbard v. Rowe, et al., 192 S. C. 12, 5 S. E. (2d) 187 (1939).

The Fourth Circuit, stated in Burriss, supra: “Under South Carolina law, the terms of a consignment agreement are not conclusive on the question of independent contractor, where there is evidence [beyond] the contract which establishes a true agency relationship.” (Emphasis added.) Burriss v. Texaco, Inc., supra, at 172; Hubbard v. Rowe, supra. The test to determine agency is whether or not the purported principal has the right to control the conduct of his alleged agent. Id.

A review of the terms of the franchise agreement shows Burger Chef, Inc. retained the right to control the detailed operation of the enterprise so that A & H Foods was in fact Burger Chefs agent doing business in Sumter, South Carolina. Burger Chef retained control of “the Trademarks” the restaurant used, the menu, the quality of food and service, the manner and equipment to be employed in preparing the food, and, most importantly, the daily operating policies of the restaurant including management of the employees.

Paragraph 10.2 of the agreement gives Burger Chef the right to require all personnel to “comply with all reasonable requirements ...” made by them. (Emphasis added.) (Tr. 50, f. 39-40.) The entirety of this agreement covers approximately thirty transcript pages and lists thirty-eight particular areas. We find sufficient evidence in the record to create a jury issue as to whether any agency relationship existed between Burger Chef and A & H Foods. Guignard Brick Works v. Allen University, 155 S. Ct. 507, 152 S. E. 707 (1930). Hence,

summary judgment was improper. We reverse and remand to the lower court for trial. Reversed and remanded. Lewis, C. J., and Harwell, JJ., concur. Littlejohn and Gregory, JJ., dissent. Harold R. Blevins and Noredda Blevins are the sole stockholders of A & H Foods in Sumter. In Murphy the Virginia Supreme Court found that a license agreement, which permits the operator of a motel to use the name “Holiday Inn” subject to certain terms and conditions, created no principal-agent or master-servant relationship.