Opinion
41128.
DECIDED FEBRUARY 1, 1965. REHEARING DENIED FEBRUARY 22, 1965.
Action for damages. Cobb Superior Court. Before Judge Henderson.
William P. Holley, for plaintiff in error.
Edwards, Bentley, Awtrey Parker, Scott S. Edwards, Jr., A. Sidney Parker, contra.
Where, as in this case, there was no genuine issue existing between the parties, the trial court did not err in granting defendant's motion for summary judgment.
DECIDED FEBRUARY 1, 1965 — REHEARING DENIED FEBRUARY 22, 1965.
Arthur Coy Southern, as plaintiff, sued John Adams, individually and d/b/a John Adams Paving Company, as defendant, to recover damages allegedly sustained as the result of the negligence of defendant's agent and employee, Edward Skudder. Plaintiff's petition alleged that Skudder, acting within the scope of his employment and while operating a front-end-loader-tractor, belonging to his employer, on a used car lot, belonging to plaintiff and located in Marietta, Ga., negligently caused a part of the front-end-loader-tractor to strike plaintiff on and about the head thereby causing certain injuries and damages for which he sued. On March 30, 1964, defendant filed its answer denying liability; on September 2, 1964, defendant filed its motion for summary judgment contending therein that Skudder was not acting within the scope of his employment when plaintiff was injured but had completely departed from the course of his duty as an agent and employee of defendant, and further that Skudder had no authority to enter into any contract on behalf of defendant to do any grading work for plaintiff. In support of his contentions made in such motion for summary judgment defendant attached affidavits of himself and of his agent and employee Edward Skudder; rule nisi was issued to show cause and after hearing arguments of counsel for both parties the trial court on October 8, 1964, sustained defendant's motion for summary judgment. To such adverse ruling by the trial court the plaintiff excepts, assigns error and brings the case here for review.
"The purpose of the Summary Judgment Act is to afford to either party litigant, upon motion, a judgment forthwith if the record shows there is not a genuine issue existing between the parties. . ." Studstill v. Aetna Cas. c. Co., 101 Ga. App. 766 (2) ( 115 S.E.2d 374). Under the record here there was no genuine issue left to be determined by a jury. Both the defendant John Adams and his agent and employee Edward Skudder testified without contradiction that Skudder had neither express nor implied authority to make contracts on behalf of his master and employer John Adams. Plaintiff contends however that even if Skudder had, without authority temporarily departed from his master's business in order to clean off plaintiff's lot, that at the time plaintiff was injured the object of Skudder's temporary departure from his master's business (cleaning off plaintiff's lot), had been accomplished and Skudder had resumed the duties of his master and that the responsibility of the master Adams for the acts of the agent and employee Skudder had then re-attached. The question and answer record in plaintiff's own deposition as to that proposition is as follows:
"Q. Now, who supervised Skudder in telling him what to do and how to do it — to your lot? A. I told him what to do, what I wanted done on the lot. Q. What did you tell him to do Mr. Southern? A. I told him to level the lot out, the gravel that was on the lot, you know, to scrape it and level the lot out, fill up the holes in the lot. Q. Now, why did he tell you he had to leave? A. Well, I don't know why he told me he had to leave. I suppose he had finished, he had done about all he could do to the lot and at that time he was ready to leave. Q. Did you talk to him about paying him at that time? A. He was to come in the office and I was going to pay him. And I though he was parking the tractor, see, and when he — I don't know he was backing up, and that is when he hit me."
Accordingly, where Skudder, at the time plaintiff was injured was on his way to plaintiff's office and at plaintiff's direction to be paid by plaintiff for the work that he had done for plaintiff, he had not at that time resumed the work of his master Adams, but rather was still in the process of concluding the business that he temporarily had undertaken on behalf of plaintiff, and for which, under these circumstances, the master Adams could not be held responsible. Unquestionably this case is controlled by the rulings in Wilson v. Quick Tire Service, 32 Ga. App. 310, 311 ( 123 S.E. 733); Cooley v. Tate, 87 Ga. App. 1, 6 ( 73 S.E.2d 72); Brennan v. National NuGrape Co., 106 Ga. App. 709 ( 128 S.E.2d 81); Greeson v. Bailey, 167 Ga. 638 ( 146 S.E. 490).
Accordingly, the trial court did not err in granting defendant's motion for summary judgment.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.