Fred A. York, Inc. v. Moss, 70272

Decision Date03 September 1985
Docket NumberNo. 70272,70272
Citation176 Ga.App. 350,335 S.E.2d 618
PartiesFRED A. YORK, INC. v. MOSS et al.
CourtGeorgia Court of Appeals

M. David Merritt, William S. Sutton, Atlanta, for appellant.

David Doverspike, Stone Mountain, Jerry D. McCumber, Thomas O. Duvall, Jr., Decatur, for appellees.

DEEN, Presiding Judge.

Sometime between 4:30 p.m. and 6:00 p.m. on September 7, 1982, an automobile owned by the appellant, Fred A. York, Inc., d/b/a York Pest Control (York), and operated by Bobby Sharpe, an employee of York, collided with the rear of the automobile being driven by the appellee, Vickie Moss. Moss and her husband subsequently commenced this action against Sharpe and York, seeking damages for personal injuries and loss of consortium. York moved for summary judgment on the basis that at the time of the collision Sharpe was off from work and not within the scope of employment, and this interlocutory appeal followed from the trial court's denial of that motion.

It was undisputed that the vehicle driven by Sharpe had York insignia on its sides, and that Sharpe wore a company uniform at the time of the collision. Sharpe was furnished the automobile primarily for the business purpose of going to job sites, but he also used the car as transportation to and from work. Although Sharpe claimed that he also enjoyed some limited personal use of the vehicle when off duty, C.S. Bowman, York's president, emphasized that the company provided Sharpe with the vehicle solely for company use. Bowman also testified that all employees were instructed to report any accidents involving company cars as soon as possible; Sharpe did call his employer soon after the collision.

Sharpe's usual work hours were 7:30 a.m. to 4:30 p.m., although occasionally he drove the vehicle to call on customers on his way to or from work; however, Sharpe stated unequivocally that at the time of the collision he was off duty and directly on his way home. Sharpe also had use of a "beeper" so that he could be contacted during the work day while away from the office, but he stated that the device was never in use after work. Both Sharpe and Bowman denied that Sharpe was ever "on call" after regular work hours, explaining that emergency situations did not arise with pest control.

Held:

A presumption arises when an employee is operating his employer's automobile at the time of a collision, that he was acting within the scope of his employment. Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979); Johnstown Fin. Corp. v. Roper, 170 Ga.App. 575, 317 S.E.2d 634 (1984); Massey v. Henderson, 138 Ga.App. 565, 226 S.E.2d 750 (1976). On a defendant's motion for summary judgment, however, "[w]hen the uncontradicted testimony of the defendant and/or 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." Allen Kane's Major Dodge v. Barnes, 243 Ga. supra at 780, 257 S.E.2d 186. Circumstantial evidence which is consistent with the defendant's evidence used to rebut the presumption will not support a verdict. Id. at 781, 257 S.E.2d 186.

In the instant case, the testimony of Sharpe and Bowman certainly rebutted the presumption that Sharpe had been within the scope of employment at the time of the collision. In denying York's motion for summary judgment, the trial court emphasized (1) that Sharpe had a beeper in the car at the time of the accident; (2) that there was some conflict between the employer and Sharpe over Sharpe's personal use of the vehicle; (3) that Sharpe occasionally called on customers on his way home in the evening; and (4) that Sharpe may have worked later than his normal work hours. The question of Sharpe's permissive personal use of the vehicle during off-duty hours, however, was immaterial to the issue of whether Sharpe was still within the scope of employment at the time of the collision. Further, while the other circumstantial evidence above may have supported the inference that Sharpe had been on duty at the time of the collision, it certainly did not demand that finding and was in fact consistent with the testimony of Sharpe and Bowman. Under these circumstances, the appellees failed to meet their burden of proving some other fact that indicated Sharpe acted within the scope of his employment at the time of the collision. Accordingly, the trial court erred in not granting summary judgment for York.

Judgment reversed.

BANKE, C.J., BIRDSONG, P.J., and SOGNIER and POPE, JJ., concur.

McMURRAY, P.J., and CARLEY, BENHAM and BEASLEY, JJ., dissent.

ON MOTION FOR REHEARING.

BEASLEY, Judge, dissenting.

I respectfully dissent because I believe there is a question of fact with respect to whether Sharpe was within the scope of his employment when the collision occurred.

"The law is clear that in the absence of special circumstances a servant in going to and from work in an automobile acts only for his own purposes and not for those of his employer. But this rule does not apply 'where the vehicle is taken to the employee's home because the employee's possession of it enables him more conveniently to perform some duty for the master.' [cit.]" Chappell v. Junior Achievement &c. Atlanta, 157 Ga.App. 41, 42-43, 276 S.E.2d 98 (1981).

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