Craig v. Gentry

• Citation: 792 S.W.2d 77
• Decision Date: 15 February 1990
• Docket Number: No. 67,67
• Parties: Alan CRAIG, Plaintiff-Appellant, v. Deborah F. GENTRY and Calvin Gentry, Defendants-Appellants, and Louis Williams, Individually and d/b/a Williams Generics, and Williams Generics, Inc., Defendants-Appellees, and Deborah F. GENTRY and Calvin Gentry, Third-Party Plaintiffs-Appellants, v. James Douglas CARROLL, Third-Party Defendant-Appellant.
• Court: Court of Appeals of Tennessee

Page 77

792 S.W.2d 77

Alan CRAIG, Plaintiff-Appellant, v. Deborah F. GENTRY and Calvin Gentry, Defendants-Appellants, and Louis Williams, Individually and d/b/a Williams Generics, and Williams Generics, Inc., Defendants-Appellees, and Deborah F. GENTRY and Calvin Gentry, Third-Party Plaintiffs-Appellants, v. James Douglas CARROLL, Third-Party Defendant-Appellant.

No. 67.

Court of Appeals of Tennessee,

Western Section.

Feb. 15, 1990.

Application to Appeal Denied by

Supreme Court May 7, 1990.

Jerry F. Taylor, Memphis, for appellant Alan Craig.

Fred P. Wilson, Memphis, for Deborah and Calvin Gentry.

Gavin M. Gentry, Lucian T. Pera, Steven W. Likens, Memphis, for appellants James Carroll and United Services Auto. Ass'n.

Richard Glassman, John Barry Burgess, Glassman & Jeter, P.C., Memphis, for the appellees Louis Williams and Williams Generics, Inc.

FARMER, Judge.

This matter results from a collision involving an automobile driven by Deborah F. Gentry and owned by her father, Calvin Gentry and a motorcycle on which plaintiff Alan Craig was a passenger. Craig sued the Gentrys as well as Ms. Gentry's employer, Louis Williams, individually and d/b/a Williams Generics and Williams Generics, Inc. (Williams). The complaint alleges that Ms. Gentry was on or about the business of her employer at the time of the accident, thus imputing her negligence to her employer.

Williams moved to dismiss the complaint for failure to state a cause of action and because no agency existed between Ms. Gentry and Williams. Since the trial court's order indicates that matters outside the pleadings were considered, the court obviously treated this as a motion for summary judgment pursuant to Rule 12.02 T.R.C.P. and dismissed the matter as to Williams on the basis that Ms. Gentry was not on or about the business of her employer nor acting in furtherance of her employer's business, but rather was on her own personal business at the time of the accident.

In ruling on a motion for summary judgment, the trial court and this Court must consider the matter in the same manner as a motion for directed verdict made at the close of plaintiff's proof, i.e., all the evidence must be viewed in the light most favorable to the opponent of the motion and all legitimate conclusions of fact must be drawn in favor of the opponent. Graves v. Anchor Wire Corp. of Tennessee, 692 S.W.2d 420 (Tenn.App.1985).

On the date of the accident, Ms. Gentry was employed by Williams. She and her co-workers, including her supervisor, decided to purchase a popcorn popper as a birthday present for Mr. Williams' daughter who was a summer employee. Sometime after lunch, Ms. Gentry embarked on the mission to go to a Target store to purchase the gift and also to go to the bank to make the company's deposit. It was not uncommon for employees to use their own vehicles while on such errands.

Ms. Gentry drove to the Target store and purchased the gift. It was then her intention to proceed to the bank to make the deposit. As she started her car, a man ran up to her and advised her that there were sparks coming up from underneath the car. Ms. Gentry did not know the man and had had no such prior problems with the vehicle. According to her affidavit, she was alarmed by his presence and determined to leave the Target parking lot to telephone her father, as he had instructed her to do when she had car trouble. She decided to go to Auto Shack, located on the other side of Stage Road, where friends were employed and where she knew she would be able to use the telephone to call her father. As she proceeded across Stage Road, the collision with the motorcycle resulted. Ms. Gentry was proceeding in a northerly direction across Stage Road and the motorcycle in a westerly direction. Had she gone from the Target store directly to the bank, she would have turned right on Stage Road and proceeded easterly.

Appellant contends that, even if Ms. Gentry were on a personal mission, her deviation was so slight that it would not relieve her employer of liability. Further, that the deviation was, at least partly, to serve her employer. Appellee counters that once she started across Stage Road toward Auto Shack to make the phone call, she ceased the errand of her employer and went outside the course of the scope of her employment.

An employer is liable for the negligent acts of an employee if the employee is on the employer's business and acting within the scope of his employment at the time the negligent act occurs. Leeper Hardware Company v. Kirk, 58 Tenn.App. 549, 434 S.W.2d 620 (1968). However, when a servant deviates from his line of duty and engages in a mission of his own or for some third person, the master cannot be held under the rule of respondeat superior. Pratt v. Duck, 28 Tenn.App. 502, 191 S.W.2d 562 (1945). It is further stated in Pratt:

With relation to a trip involving both the business of the employer and the private purpose of the employee, it has been said:

"The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal." Per Cardozo C.J., in Marks v. Gray, 251 N.Y. 90, 93, 167 N.E. 181, 183.

Id., 191 S.W.2d at 566-567.

In Leeper Hardware Company v. Kirk, supra, the employer learned that employee Brown planned to go home for lunch. Leeper instructed Brown to pick up a lawn mower at Leeper's home and to use it in mowing the lawn...