Davis Gas Co. v. Powell, 52582
Decision Date | 30 November 1976 |
Docket Number | Nos. 1,No. 52582,3,2,52582,s. 1 |
Citation | 140 Ga.App. 841,232 S.E.2d 258 |
Parties | DAVIS GAS COMPANY v. Harvey POWELL, Administrator, et al |
Court | Georgia Court of Appeals |
Owens & Hilyer, Seymour S. Owens, Tifton, for appellant.
Reinhardt, Whitley & Sims, Ralph F. Simpson, Tifton, Willie E. Lockette, Jr., Albany, for appellees.
1. The central issue in this appeal is whether the acts of defendant-appellant's employees were within the scope and course of their employment so as to impose liability on their employer for the consequences of those acts.
Whatley and Lamb were employees of Davis Gas Company on the date of the death of Patricia Powell Cox. They had been instructed by Hamp Davis, their boss, to go to Harold Ivey's farm that afternoon to pick up wheels for a tobacco barn. They used the truck assigned to Cliff Whatley for this purpose. Both had trucks assigned to them which they used interchangeably. Each had the use of the truck assigned to him. They drove them home at night, and back to work in the mornings. The trucks were used on calls at all hours and could be used for personal reasons, although they weren't 'supposed' to. There were several routes to Harold Ivey's farm and they had authority to use whichever they chose.
They were given no definite time to get to or get back from Ivey's farm. They picked up sixteen-year-old defendant Henderson on the way there, bought gas and charged it to Davis Gas Co. and proceeded to the farm. When they picked up Henderson, they knew she had been drinking, and was acting funny or high. Defendant Henderson stated that Whatley stopped on the way, purchased beer and gave it to her to drink. She drank the beer with Lamb. Whatley drank no beer, stating 'I'm working' and 'I don't drink while I'm working.' After she drank more beer, defendant Henderson started acting 'really wild' and using vulgar and lewd language. She seemed sick, and both Whatley and Lamb got out of the truck, leaving it stopped in the lane of traffic, keys in the ignition, engine running, automatic transmission in park and without the emergency brake on. She was the only one left in the truck and was in control of it. At this time, they were a few miles from Ivey's farm, and still had the intention of going there. The truck was headed in the direction of Norman Park or Cool Springs, depending on which testimony is believed. Their purpose in being out there when the girl took the truck, was still to go to Ivey's farm. They considered themselves to be on the job. It was company business to go to Ivey's farm. A short time later, while defendant Henderson was driving the truck in a drunken condition, it collided with the vehicle Patricia Powell Cox was driving. Patricia Powell Cox died as a result of the collision. Whatley and Lamb were paid a full day's pay, and were still employed by the defendant company at the time of trial.
The jury returned a verdict for the plaintiff against all the defendants. Only Davis Gas Co. has appealed. On appeal the evidence is construed most strongly to support and sustain the verdict and judgment of the trial court. Worn v. Sea-Cold Services, Inc., 135 Ga.App. 256(2, 3), 217 S.E.2d 425 and cits. As has been noted, there were several routes from Moultrie, Georgia, to Harold Ivey's farm near Norman Park, Georgia. The route taken carried the two employees and Miss Henderson onto a county dirt road at its intersection with the Norman Park-Cool Springs highway. At this point, Miss Henderson said she was sick, and asked to be taken home. She lived just down the road apiece. First dirt road on the left, first house on the right. The employee drove down the road 'a little piece' when Miss Henderson fell over toward the dash. At this point, the truck was stopped and the events occurred which led to Miss Henderson's taking the truck and the subsequent tragedy. Thus, the deviation is the 'little piece' the employee drove down the Norman Park-Cool Springs highway prior to the truck's being stopped.
6 Blashfield, Automobile Law and Practice (3rd ed.) 245, § 253.78. See Perry v. Haritos, 100 Conn. 476, 124 A. 44.
Parker v. Smith, 66 Ga.App. 567, 569, 18 S.E.2d 559, 560.
The transcript of the evidence shows the extensive use of maps and diagrams showing exactly where all events occurred. In Parker, supra, this court, applying the foregoing principles, affirmed the resolution of a deviation from employment by the jury in favor of the plaintiff.
In Pratt v. Melton, 107 Ga.App. 127, 129 S.E.2d 346, the sole issue to be resolved was one of deviation from employment. In the opinion, our court stated the following facts: Pratt, supra, p. 130, 129 S.E.2d p. 349. In reversing the direction of a verdict for the defendant, our court stated: ...
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