Healthdyne, Inc. v. Odom

• Decision Date: 05 December 1984
• Docket Number: Nos. 68793,68794,s. 68793
• Citation: 173 Ga.App. 184,325 S.E.2d 847
• Parties: HEALTHDYNE, INC. v. ODOM (two cases).
• Court: Georgia Court of Appeals

Page 847

325 S.E.2d 847

173 Ga.App. 184

HEALTHDYNE, INC. v. ODOM (two cases).

Nos. 68793, 68794.

Court of Appeals of Georgia.

Dec. 5, 1984.

Rehearing Denied Dec. 20, 1984.

Certiorari Denied Jan. 24, 1985.

Donald D. Smith, Marietta, for appellant.

Roger M. Johnson, Canton, Thomas F. Allgood, Jr., Atlanta, N. Jackson Harris, Canton, for appellees.

SOGNIER, Judge.

William and Martha Odom brought these actions against Kenneth Lee Bucher and Bucher's employer, Healthdyne, Inc. (Healthdyne), for personal injuries resulting from a collision between their car and a car driven by Bucher. The Odoms alleged that Bucher was negligently driving while under the influence of alcohol. The Odoms based their claims for relief against Healthdyne upon a theory of respondeat superior. Healthdyne appeals from the trial court's denial of its motions for summary judgment.

Appellant contends that the trial court erred by denying its motions for summary judgment because the evidence established that Bucher was not acting within the scope of his employment and on his employer's business at the time he collided with appellees.

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. [Cits.]" Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777, 257 S.E.2d 186 (1979). Bucher was employed by appellant as a purchasing agent. The collision occurred at approximately 9:00 p.m. after Bucher left a meeting at a restaurant with a co-worker and a prospective vendor. As proof that Bucher was within the scope of his employment and on appellant's business, appellees rely on the fact that appellant required Bucher to entertain prospective vendors after normal working hours on a regular basis and that it was during the business meeting that Bucher consumed approximately four mixed drinks which appellees allege were the source of Bucher's inebriated driving. Appellees also place significance on the fact that subsequent to the meeting, appellant entered into business transactions with the employer of the prospective vendor, perhaps arising out of discussions which took place at that meeting. The evidence was uncontroverted that at the time of the collision Bucher was on his way home.

" ' "As a general rule, a servant in going to and from his work in an automobile acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held to be liable for an injury occasioned while the servant is en route to or from his work. [Cits.]" ' " Elam v. Ins. Co. of North America, 134 Ga.App. 169, 213 S.E.2d 546 (1975). The cases appellees rely on are all distinguishable from the instant case in that the employees in question were traveling to call on business prospects or for other business purposes on behalf of their employers. Appellees have failed to produce any evidence that Bucher was acting in furtherance of his employer's business at the time of the collision. Even in cases involving on-call employees driving company cars, such employees are not within the scope of their employment when involved in collisions while on purely personal missions. Evans v. Dixie Fasteners, Inc., 162 Ga.App. 74, 290 S.E.2d 172 (1982). There being no genuine issue of fact as to whether Bucher was acting within the scope of his employment or on the business of his employer at the time of the collision, the trial court erred by denying appellant's motion for summary judgment. See generally, Evans v. Dixie Fasteners, Inc., supra; Elam v. Ins. Co. of North America, supra; Allen Kane's Major Dodge v. Barnes, supra; Short v. Miller, 166 Ga.App. 265, 304 S.E.2d 434 (1983).

2. Appellees argue that a fact issue exists as to whether appellant ratified the conduct of Bucher in becoming inebriated. An act cannot be subject to ratification unless done for and on behalf of the person adopting it and attempting to ratify it. Regional Pacesetters v. Halpern Enterprises, 165 Ga.App. 777, 781, 300 S.E.2d 180 (1983). Appellant's approval and sanctioning of Bucher's entertainment of prospective vendors does not constitute evidence that Bucher was in appellant's service when he drove home in an allegedly inebriated state. Even construing the evidence most strongly in favor of appellee as the party opposing the motions for summary judgment, Hanover Ins. Co. v. Nelson Conveyor etc., Co., 159 Ga.App. 13, 14, 282 S.E.2d 670 (1981), we find no genuine questions of material fact remain and therefore the trial court erred by denying appellant's motion for summary judgment.

Judgment reversed.

BANKE and BIRDSONG, P.JJ., and CARLEY and BENHAM, JJ., concur.

McMURRAY, C.J., DEEN, P.J., and POPE and BEASLEY, JJ., dissent.

DEEN, Presiding Judge, dissenting.

While basically concurring with Chief Judge McMurray's dissent, some additional analysis may clarify the threshold determination of liability of an employer for injuries sustained by a third party in a collision allegedly caused by the negligent intoxication of the employee. In Chastain v. Litton Systems, Inc., 694 F.2d 957 (4th Cir.1982), the court employed essentially a three prong analysis: (1) was the employee's consumption of alcoholic beverage within the scope of employment; (2) was the employee negligent in consuming excessive alcoholic beverage and becoming intoxicated; and (3) did the employee's negligent intoxication which occurred within the scope of employment continue until the time of the collision and thus constitute the proximate cause of the plaintiff's injuries? (The fact that the employee was on the way home at the time of the collision, without more, would not insulate the employer from liability.) That uncomplicated respondeat superior analysis is cogent and fair, and this court should observe it.

If the answer to any of the above questions is an uncontroverted "no," the employer of course, would be entitled to summary judgment. In the instant case, however, the evidence certainly was sufficient to make these questions at least matters for jury resolution. The trial court thus properly denied the employer's motions for summary judgment. Accordingly, I must respectfully dissent.

I am authorized to state that Judge BEASLEY joins in this dissent.

McMURRAY, Chief Judge, dissenting.

The evidence contained in the record presents genuine issues of material fact for jury resolution in regard to whether defendant Bucher consumed excessive alcohol prior to driving home, was driving under the influence of alcohol, or otherwise negligent so as to cause the collision which injured plaintiffs. On appellate review of summary judgment all evidence and...