Summary
In West Point Pepperell, this Court held that a jury issue was present even though the defendant's employee admitted that he drove his wife in a company-provided vehicle with the main purpose of "let[ting] his wife ride in the truck," and even though he testified he was not on company business.
Summary of this case from Remediation Resources v. BaldingOpinion
49435.
ARGUED MAY 28, 1974.
DECIDED JUNE 28, 1974.
Action for damages. Troup Superior Court. Before Judge Knight.
Lovejoy, Mayer, Allen Quillian, Jerry Willis, for appellant.
Dennis Fain, Douglas Dennis, J. Madden Hatcher, Jr., for appellees.
There being issues of fact it was error to grant the motions for summary judgment.
ARGUED MAY 28, 1974 — DECIDED JUNE 28, 1974.
Appellant filed its action seeking damages against the appellees.
The appellant alleged in its complaint that Larry Joel Barnes, Jr. operated a vehicle owned by Joe Knowles and leased to National Freight, Inc. in a wilful, reckless and negligent manner while in a condition and state of intoxication. Appellant further alleged that as a result of appellee Barnes' operation of the vehicle he collided with the property of appellant; the appellee Barnes was in the employment of and acting as agent for National Freight, Inc.
Appellee Barnes testified by deposition that he was employed by Knowles, paid by Knowles and operated a vehicle owned by Knowles; the tractor was leased to National Freight, Inc. from whom Barnes received his shipping instructions; National Freight, Inc. furnished the trailer which was attached to the tractor; he went to Knowles' home and picked up the tractor which he then drove to National Freight, Inc.'s terminal in Fairburn, Georgia; upon arriving at the terminal, he received his shipping instructions to take a trailer to Montezuma, Georgia; he went to Montezuma and delivered the cargo in the trailer and proceeded to return to the terminal in Fairburn by way of LaGrange, Georgia, his home town; he was under no direction to return by a specific route and in his opinion the return trip by way of LaGrange was approximately the same distance as that which he had taken to Montezuma; he arrived in LaGrange, Georgia at approximately 9:00-9:30 p. m. and took his tractor-trailer to a parking area at which time he disengaged the trailer from the tractor; he went to a cafe on the adjoining property and had a sandwich to eat and then went to a lounge in the rear of the cafe where he consumed six beers within a period of one hour; he then re-entered his tractor, without trailer, and drove to his home in LaGrange where he planned to bathe, change clothes, eat dinner and watch the late show on television; it was his intention to return to Fairburn at approximately 1:00, 2:00 or 3:00 o'clock on the morning of January 3, 1973 after spending some time with his family; when he arrived at his home, he bathed, changed clothes, ate dinner and sat around his home with his family; his wife asked him to take her to ride in the tractor whereupon he, his wife and child went to the tractor and proceeded to take a ride; he went on the trip for two reasons, one was to fuel the truck and the other was to let his wife ride in the truck; he decided that he would drive out Highway 29 to Hogansville and refuel his tractor so that he would not have to do this when he later left LaGrange; upon arriving at the truck stop, Mr. Barnes changed his mind because there was a truck at the pump and he did not want to wait; he then went to Ken Carpet Mill where his father-in-law worked and where he had numerous friends; the purpose of this deviation was to visit with his father-in-law and his friends; he remained at Ken Carpet Mill for approximately ten minutes and then proceeded with his wife and child in the tractor to return to their home; the collision which is the subject matter of this lawsuit took place prior to the returning to their home.
The appellees, National Freight, Inc. and Knowles, filed motions for summary judgments which were granted. The appellant filed an appeal and the case is here for review.
1. The issue for determination is whether Barnes, National's employee, was at the time of the collision acting in the prosecution of his master's business and within the scope of his employment. The appellees contend that Barnes was at the time of the collision on an entirely personal mission which was completely disconnected from his employment. The appellant takes the position that Barnes deviated from his duties but that at the time of the collision the temporary departure had ended and he had re-entered the scope of his employment.
Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise. Dawson Motor Co. v. Petty, 53 Ga. App. 746, 749 ( 186 S.E. 877); Brennan v. National NuGrape Co., 106 Ga. App. 709, 711 ( 128 S.E.2d 81).
(a) The first question which must be answered is whether Barnes was acting within the scope of his employment when he left his home and proceeded to the truck stop to purchase fuel for the tractor. There was evidence that National was aware that Barnes would take rest stops at his home when he was making trips for National. Barnes testified that when he left his home with his wife he was not on any company business. However, he later testified that he had left his home for two reasons, one to take his wife for a ride and the other was to obtain fuel for the tractor. As held in Jones v. Dixie Ohio Express, 116 Ga. App. 155, 156 ( 156 S.E.2d 388): "The test is not that the act of the servant was done during the existence of the employment — that is to say, during the time covered by the employment — but whether it was done in the prosecution of the master's business; whether the servant was at that time engaged in serving his master." The question of whether or not a servant was acting in the prosecution of his master's business and in the scope of his employment is for determination by the jury except in plain and indisputable cases. See Pratt v. Melton, 107 Ga. App. 127, 133 ( 129 S.E.2d 346); Jump v. Anderson, 58 Ga. App. 126, 128 ( 197 S.E. 644); Columbia Drug Co. v. Cook, 127 Ga. App. 490, 492 (2) ( 194 S.E.2d 286).
This evidence presented an issue of fact for a jury as to whether Barnes was acting for his employer at the time he was traveling to the truck stop to obtain the fuel for the tractor. While it is true that the collision did not occur while Barnes was en route to the truck stop, a determination of this issue is necessary to reach the final decision of this case.
(b) It is clear that after reaching the truck stop and while proceeding to the mill to visit with his father-in-law and friends, Barnes was not within the scope of his employment.
(c) Assuming but not deciding that Barnes was acting in the prosecution of his employer's business while en route to the truck stop to obtain fuel, it then becomes necessary to decide whether he was within the scope of his employment when he left the mill and was returning to his home.
Without question Barnes deviated from his employment when he went to the mill to visit. It now must be decided whether Barnes after having departed from his employment in going to the mill had re-entered the scope of his employment when he started to his home. Atlanta Furniture Co. v. Walker, 51 Ga. App. 781 (1) (181 Se 498). If Barnes was within the scope of his employment while en route to the truck stop to obtain fuel he would have also been acting for his employer while en route home, if he had gone directly home after reaching the truck stop. However, in the case sub judice, Barnes did not go directly home from the truck stop. Therefore, under the facts of this case there was an issue of fact as to whether at the time of the collision, while en route home, Barnes had re-entered the scope of his employment and was acting in his employer's behalf. Adams v. U.S. Fidelity Guaranty Co., 125 Ga. App. 232 ( 186 S.E.2d 784); Atlanta Furniture Co. v. Walker, 51 Ga. App. 781, supra; Curtis v. Royal Indemnity Co., 101 Ga. App. 158 ( 112 S.E.2d 819); Wicker v. Fidelity Casualty Co. of N. Y., 59 Ga. App. 521, 523 ( 1 S.E.2d 464).
The granting of the motions for summary judgments was error.
Judgment reversed. Bell, C. J., and Clark, J., concur.