Allen Kane's Major Dodge, Inc. v. Barnes

• Decision Date: 30 May 1979
• Docket Number: No. 34595,34595
• Parties: ALLEN KANE'S MAJOR DODGE, INC. v. BARNES.
• Court: Georgia Supreme Court

Page 186

257 S.E.2d 186

243 Ga. 776

ALLEN KANE'S MAJOR DODGE, INC. v. BARNES.

No. 34595.

Supreme Court of Georgia.

Argued March 13, 1979.

Decided May 30, 1979.

Fain & Gorby, Nicholas C. Moraitakis, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Charles E. Walker, Ben L. Weinberg, Jr., J. M. Hudgins, IV, Michael T. Bennett, Atlanta, for appellee.

BOWLES, Justice.

The facts of this case are fully stated in the opinion rendered by the Court of Appeals at 148 Ga.App. 332, 250 S.E.2d 876 (1978) but in brief follow: The case arises out of an alleged collision between one Underhill and the plaintiff, Barnes. Underhill was a car salesman working for Allen Kane's Major Dodge, Inc. (hereinafter, Allen Kane) and, at the time of the collision, he was driving a used car owned by Allen Kane which he was permitted to use as personal transportation. Plaintiff sued Underhill in negligence and joined Allen Kane on two theories respondeat superior and negligent entrustment. The trial court granted Allen Kane's motion for summary judgment on the theory of respondeat superior but denied summary judgment on negligent entrustment. Appeal to the Court of Appeals brought about a reversal of the trial court's grant of summary judgment on respondeat superior and an affirmance of the trial court's denial of summary judgment on negligent entrustment. We granted certiorari on division one of the opinion of the Court of Appeals to examine the law of respondeat superior in this area. Having done so, we reverse the decision of the Court of Appeals in Division 1.

The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. Nichols v. G. L. Hight Motor Co., 65 Ga.App. 397, 15 S.E.2d 805 (1941); West Point Pepperell v. Knowles, 132 Ga.App. 253, 208 S.E.2d 17 (1974). "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." West Point Pepperell v. Knowles, supra, at 255, 208 S.E.2d at 19. See also, Dawson Motor Co. v. Petty, 53 Ga.App. 746, 186 S.E. 877 (1936). This must be done by clear, positive and uncontradicted evidence. Massey v. Henderson, 138 Ga.App. 565, 226 S.E.2d 750 (1976), affd. 238 Ga. 217, 232 S.E.2d 53 (1977).

At the time of the summary judgment hearing, the trial court had the uncontradicted affidavit of Underhill that at the time of the collision (late at night) he was engaged in a purely personal mission i.e. barhopping and was not attempting to further Allen Kane's business in any manner. The question then is, is that sufficient for the grant of summary judgment in favor of Allen Kane?

The general rule with regard to motions for summary judgment is: "when a motion for summary judgment is made and supported by evidence outside the pleadings, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific Facts showing that there is a genuine issue for trial." Meade v. Heimanson, 239 Ga. 177, 178, 236 S.E.2d 357, 358, (1977). (Emphasis supplied.)

Cases involving car salesmen and the issue of respondeat superior are a breed in and of themselves. See 53 A.L.R.2d 658 and 51 A.L.R.2d 120. Because information about a professional salesman's intent at a given time is within his own mind and thus difficult for a plaintiff to obtain, the presumption which arises when the vehicle is owned by the driver's employer that the driver is within the scope of employment is a difficult one to overcome. However, "The presumption that the servant is serving his master within the scope of his employment may, unless supported and corroborated by other evidence, be overcome by uncontradicted evidence." F. E. Fortenberry & Sons, Inc. v. Malmberg, 97 Ga.App. 162, 165, 102 S.E.2d 667, 671, (1958). Thus, in the case at bar, if plaintiff has no other evidence corroborating the presumption that Underhill was within the scope of his employment, Allen Kane is entitled to summary judgment based on Underhill's testimony. The corollary to this proposition is, even positive and uncontradicted testimony by the employer and the employee that the employee's activities were not within the scope of his employment does not overcome as a matter of law the presumption if plaintiff had any other evidence (that is other than the fact that the vehicle belongs to the driver's employer) from which a jury could legitimately infer that the employee was acting within the scope of his employment. Id.:

Pictorially, the proof for each side is this:

                          Plaintiff                     Defendant
                ------------------------------  --------------------------
                1.  The vehicle was defendant's  1.Uncontradicted testimony
                                                of the defendant and/or
                2.  The driver was defendant's   the employee that the em-
                   employee                     ployee was not acting
                                                within the scope of his
                3.  Some other fact which indi-  employment
                   cates the employee was act-
                   within the scope of his
                   employment
                

If this is the evidence before the trial court on motion for summary judgment, the defendant is not entitled to summary judgment under the authorities above cited.

The chart above appears to depict the evidence that was before the trial court in the case at bar. The Court of Appeals found that the required "some other fact" was the fact that Underhill had "unrestricted authority to solicit prospective purchasers." 148 Ga.App. at 333, 250 S.E.2d at 878. The problem with that holding is that if the mere "unrestricted authority to solicit prospective purchasers" is a sufficient "some other fact" then this kind of case will usually have to go to a jury since that fact is usually going to be present. Some may think that that is an appropriate result but we must ask ourselves, if that is all the evidence on the plaintiff's side, would that be sufficient evidence to support a jury verdict in favor of the plaintiff? As was stated in Ga. R. & Electric Co. v. Harris, 1 Ga.App. 714, 717, 57 S.E. 1076, 1077 (1907): "However willing we are to commit to the jury the solution of every question of fact, yet in the very nature of things, when the determination of the issue rests not on direct proof, but on circumstances, there exists a point where the inferences to be drawn cannot, as a matter of law, be sufficient to support a verdict." ¹

The task before us then is to determine what sort of "other fact" is going to be necessary to get a given case to a jury.

Barnes would have us hold that any case in which the testimony of the employer or the employee stands alone should go to a jury since the credibility of those witnesses is a jury question. But, "Direct and positive testimony as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicteddirectly or by proof of facts or circumstances that could be taken as incompatible with such testimony, cannot be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth." Lankford v. Holton, 187 Ga. 94, 102, 200 S.E. 243, 249 (1938). On the other hand, "In a case where the direct evidence is not all one way, or where there are proved facts and circumstances which could be taken as inconsistent with the direct positive testimony, the jury may always consider the relationship and the feeling of the witnesses toward the parties, as well as all the facts and circumstances of the case, including the witnesses' manner of testifying, their intelligence and number." Id. at 102, 200 S.E. at 249.

From these various authorities we conclude that the following is an appropriate test to determine when a plaintiff in this kind of case gets by a defendant's motion for summary judgment: When the uncontradicted testimony of the defendant and/or of the employee shows that the employee was not acting within the scope of his employment at the time of the accident, the plaintiff must show, in addition to the facts which give rise to the presumption that he was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment. If this "other fact" is Direct evidence, that is sufficient for the case to go to a jury. However, when the "other fact" is Circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendant's motion for summary judgment.

The next question obviously is, what kind of circumstantial evidence is sufficient to support a verdict? "W...