Opinion
41894.
ARGUED APRIL 4, 1966.
DECIDED APRIL 25, 1966.
Action for damages. Fulton Superior Court. Before Judge Moore.
Northcutt Edwards, John Ray Nicholson, for appellant.
Ross Finch, Homer A. Houchins, Jr., for appellee.
The trial court did not err in granting summary judgment for defendant where defendant showed by positive and uncontradicted evidence that the tort committed by its servant and causing plaintiff's injuries was entirely disconnected from the servant's employment.
ARGUED APRIL 4, 1966 — DECIDED APRIL 25, 1966.
Pauline H. Sparks brought this action against Buffalo Cab Company, Inc. to recover for personal injuries sustained by plaintiff in an automobile collision. Plaintiff alleged that her injuries were caused by the negligent operation of defendant's automobile by defendant's employee, Frank D. Walker.
Defendant filed a motion for summary judgment and a supporting affidavit made by Walker. The affidavit showed that on April 15, 1963, the day before the collision, Walker worked in his employment up until 3 p. m., after which he left work and drove from Atlanta to Douglasville, to visit his parents and children. He spent the remainder of the day in Douglasville and stayed there overnight. He remained in Douglasville with his family most of the next day, April 16, on which the collision occurred. Early in the evening that day he started driving back to Atlanta. During the trip back to Atlanta he was involved in the automobile collision with plaintiff. For more than 24 hours preceding the collision, he was engaged in a matter purely personal to himself, namely, visiting with his family, and had not been working at all during that time. When the collision occurred, he "was not on the job for Buffalo Cab Company" and did not intend to return to work until the following morning.
Plaintiff enumerates error on the grant of summary judgment for defendant.
"To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master's business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant's employment." Wilson v. Quick-Tire Service, 32 Ga. App. 310, 311 ( 123 S.E. 733); Corum v. Edwards-Warren Tire Co., 110 Ga. App. 33 (1) ( 137 S.E.2d 738). "For a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant's employment." Fielder v. Davison, 139 Ga. 509, 512 ( 77 S.E. 618).
The supporting affidavit in this case showing that defendant's employee was engaged in the return trip from a visit to his family and that he was not working for his employer at the time but was preoccupied with a personal enterprise of his own was clear, positive and uncontradicted evidence sufficient to pierce plaintiff's allegations predicating defendant's liability upon the doctrine of respondeat superior. "Where a servant, while not engaged in the performance of his master's business, and during a time when he is free to engage in his own pursuits, uses his master's automobile for his own purposes (although he does so with the knowledge and consent of his master), and, while so using it, negligently injures another by its operation, the master is not liable for the injuries." Eason v. Joy Floral Co., 34 Ga. App. 501 (1) ( 130 S.E. 352). See also Harmon v. Southeastern Compress c. Co., 48 Ga. App. 392 ( 172 S.E. 748). Davies v. Hearn, 45 Ga. App. 276, 278 ( 164 S.E. 273); Starr Sons Lmbr. Co. v. York, 89 Ga. App. 22, 25 ( 78 S.E.2d 429); F. E. Fortenberry Sons v. Malmberg, 97 Ga. App. 162, 165 ( 102 S.E.2d 667); Ayers v. Barney A. Smith, 112 Ga. App. 581 ( 145 S.E.2d 753), and other cases cited by plaintiff have no application here. In each of the named cases there was evidence authorizing the conclusion that the employee's activities were not entirely disconnected from his employment. Note that a portion of the court's ruling in Fortenberry Sons v. Malmberg, supra, p. 169, was expressly disapproved in Corum v. Edwards-Warren Tire Co., supra, p. 35.
Plaintiff did not present any evidence showing that Walker's operation of defendant's automobile at the time of the collision had any connection whatsoever with Walker's employment. "The time for the party opposing the motion to present relevant evidence or show satisfactory reasons for the nonproduction is at the time of the hearing on the order to show cause, and if this is not done, it is too late to complain later. Scales v. Peevy, 103 Ga. App. 42 (2) ( 118 S.E.2d 193); Studsill v. Aetna Cas. c. Co., 101 Ga. App. 766, 768 ( 115 S.E.2d 374)." King v. Fryer, 107 Ga. App. 715, 717 ( 131 S.E.2d 203).
The trial court did not err in granting summary judgment for defendant.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.