International Business Machines, Inc. v. Bozardt

• Decision Date: 25 February 1981
• Docket Number: No. 60226,60226
• Citation: 275 S.E.2d 376,156 Ga.App. 794
• Parties: INTERNATIONAL BUSINESS MACHINES, INC. v. BOZARDT et al.
• Court: Georgia Court of Appeals

Page 376

275 S.E.2d 376

156 Ga.App. 794

INTERNATIONAL BUSINESS MACHINES, INC. v. BOZARDT et al.

No. 60226.

Court of Appeals of Georgia.

Argued July 9, 1980.

Decided Nov. 24, 1980.

Rehearing Denied Dec. 10, 1980.

Certiorari Denied Feb. 25, 1981.

Nicholas C. Moraitakis, Atlanta, for appellant.

Robert A. Elsner, Oliver B. Dickins, Jr., Asst. U. S. Atty., Edgar A. Neely, Jr., Daniel S. Reinhardt, Daryll Love, Atlanta, for appellees.

CARLEY, Judge.

This is a wrongful death action in which appellant, International Business Machines, Inc. (IBM) is only one of several defendants. Appellee-plaintiff's decedent was struck by an automobile being driven by IBM's co-defendant Henner, an employee of IBM. Appellee's complaint alleges that Henner was an employee of IBM and was acting within the scope of his employment at the time and place of the concerned incident. IBM, relying upon Henner's deposition and answers to appellee's interrogatories, moved for summary judgment on the grounds that at the time of the concerned incident Henner was traveling to dinner and was not acting within the scope of his employment. The trial court denied the motion but certified the order for interlocutory review. IBM's application for interlocutory appeal was granted in order that we might review the trial court's ruling in light of the Supreme Court's decision in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979).

It is a recognized principle under Georgia law that when an employee is involved in a collision, while operating his employer's vehicle, a presumption arises that he is acting within the scope of his employment. West Point Pepperell v. Knowles, 132 Ga.App. 253, 208 S.E.2d 17 (1974). Once this presumption arises the burden then shifts to the employer "to rebut the presumption by evidence that is 'clear, positive and uncontradicted' and that shows the servant was not in the scope of his employment." Massey v. Henderson, 138 Ga.App. 565(1), 226 S.E.2d 750 (1976).

Recognizing the aforestated premises, the Supreme Court in Kane held that once the employer or employee presents positive and uncontradicted evidence that the employee's activities at the time and place in question were not within the scope of his employment, the plaintiff must show some other fact other than the fact which gave rise to the initial presumption from which a jury could infer that the employee was acting within the scope of the employment. In determining what "other fact" must be shown in order to submit a given case to the jury, the court stated: "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." Kane, supra, 243 Ga. at 780, 257 S.E.2d 186.

At the time of the hearing on the defendant-employer's motion for summary judgment in Kane, supra, the trial court had before it the following evidence: One Underhill was an employee of Allen Kane's Major Dodge, Inc. and was driving a used car owned by Allen Kane which he was permitted to use as personal transportation when the concerned collision occurred. In rebuttal to the presumption which arose from the foregoing facts, the trial judge 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." Kane, supra at 777, 257 S.E.2d 186. In addition, there was evidence that while Underhill was without authority to consummate the sale of a vehicle other than at the dealership's premises during regular business hours, he was allowed to solicit prospective purchasers at any time and that salesmen like Underhill were provided with an automobile, at least partially, for that reason.

In reversing the trial court's grant of the employer's motion for summary judgment, this court found the fact that Underhill had unrestricted authority to solicit prospective purchasers was an "additional circumstance" sustaining the presumption of the master-servant relationship. See Barnes v. Allen Kane's Major Dodge, 148 Ga.App. 332, 250 S.E.2d 876 (1978). However, the Supreme Court disagreed, stating: "... 'the unrestricted authority to solicit prospective purchasers' is circumstantial evidence and further it is not inconsistent with Underhill's testimony showing that despite this fact, at the time of the accident in question, he was not acting within the scope of his employment. We find that not only does this circumstantial evidence not demand a finding for the plaintiff on the issue, it constitutes a 'mere inconclusive inference' and thus is insufficient to get plaintiff by defendant's motion for summary judgment on that question." Kane, 243 Ga. supra at 781, 257 S.E.2d 186.

Notwithstanding the fact that Henner was driving a rental car the expense of which was fully paid by IBM (as opposed to being owned by IBM), IBM concedes that from the facts of this particular case the presumption arose that Henner was acting within the scope of his employment at the time appellee's decedent was struck. However, IBM contends that Henner's testimony on deposition and answers to appellee's interrogatories rebutted said presumption. The record reveals that appellee propounded the following interrogatory to Henner: "At the time of the occurrence complained of, was the defendant acting within the scope of his employment?" Henner's response thereto: "No. This defendant was on his way to dinner." In his deposition, Henner never stated positively that he was not acting within the scope of his employment or in the furtherance of his master's business at the time of the concerned incident. Rather, Henner stated that he was on his way to dinner and recited additional information relative to his stay in Atlanta.

Assuming without deciding that the aforesaid testimony of Henner is sufficiently "clear, positive and uncontradicted" evidence to overcome the presumption that he was acting within the scope of his employment at the time of the concerned incident, the record contains several "other facts" within the meaning of the Kane case which show that there remain genuine issues for jury determination and that, therefore, summary judgment was properly denied.

The factual situation in the case at bar is distinguishable from that of the Kane case. The pertinent facts in this case as adduced from the deposition of Henner are as follows: At the time of the concerned incident resulting in the death of appellee's decedent, Henner was an employee of IBM and was stationed in New York. However, during the week in which appellee's decedent was killed, Henner was in Atlanta solely for the purpose of attending and participating in a series of conferences regarding a certain product marketed by IBM. IBM paid for his airplane fare to Atlanta, his meals and lodging while in Atlanta, and for the automobile which he rented (and which he was driving at the time of the fatal occurrence) at Hartsfield Airport upon his arrival in Atlanta. Henner testified that he did not use the rented vehicle to travel between his hotel and the site of the convention as IBM provided buses for such travel. He further testified that it was his usual practice to rent a car when out of town, that IBM expected him to do so and that the company would pay for any reasonable use of the car. In particular, Henner testified that IBM realized he would use the rented vehicle to travel, within reason, to restaurants for meals. On the other hand, IBM would not reimburse him for entertainment expenses. Henner further stated that at the time of the mishap, he and two other IBM employees were traveling from the Peachtree Plaza Hotel where he was staying to a restaurant in the Atlanta...