Jones v. Aldrich Co., Inc., 76754

• Decision Date: 15 September 1988
• Docket Number: No. 76754,76754
• Citation: 188 Ga.App. 581,373 S.E.2d 649
• Parties: JONES v. ALDRICH COMPANY, INC.
• Court: Georgia Court of Appeals

Page 649

373 S.E.2d 649

188 Ga.App. 581

JONES v. ALDRICH COMPANY, INC.

No. 76754.

Court of Appeals of Georgia.

Sept. 15, 1988.

Rehearing Denied Sept. 28, 1988.

Certiorari Denied Dec. 1, 1988.

James E. Butler, Jr., Robert D. Cheeley, Columbus, for appellant.

Glenn Frick, Totsy Nichols, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Esther Reifman was employed by Aldrich Company, Inc., ("Aldrich") as an architectural designer. Reifman lived in Dunwoody, Georgia and Aldrich had its offices in Smyrna, Georgia.

On May 20, 1985, Reifman left Aldrich's offices on an assignment at approximately 3:00 p.m. She took her own automobile and was to be paid mileage expenses for making the trip.

Reifman went to a job site in Buford, Georgia, to inspect a building designed by Aldrich. She was asked to make the trip in the late afternoon in order to minimize her travel time during working hours. (Typically, Reifman worked from 8:30 a.m. to 5:30 p.m.)

Reifman arrived at the job site and met with the job site superintendent. Then, she proceeded home, leaving the site at about 4:50 p.m. On her way home, Reifman's automobile collided with a pick-up truck driven by William Harold O'Kelley and O'Kelley's vehicle burst into flames.

Reifman and O'Kelley were both injured in the collision. A helicopter ambulance arrived to transport O'Kelley to the hospital and while O'Kelley was being transported, the helicopter crashed. O'Kelley died six days later.

Inquiries about workers' compensation benefits were made on behalf of Reifman. Thereafter, Reifman received weekly income benefits. She also received payment for her medical expenses.

Plaintiff Jones, the administrator of O'Kelley's estate, brought this action against Reifman and Aldrich seeking damages for O'Kelley's pain and suffering. It was alleged that Aldrich was liable to plaintiff under a respondeat superior theory.

The complaint was answered by Reifman and Aldrich and, following discovery, plaintiff moved for summary judgment with regard to the respondeat superior issue. Plaintiff's summary judgment motion was denied. Then, Aldrich moved for summary judgment asserting it could not be held vicariously liable as a matter of law. Its summary judgment motion was granted.

Plaintiff appeals, enumerating error upon the grant of Aldrich's motion for summary judgment and the denial of his motion for summary judgment. Held:

1. "In American Oil Co. v. McCluskey, 119 Ga.App. 475, 477, 167 S.E.2d 711, citing Fielder v. Davison, 139 Ga. 509, 511, 77 S.E. 618 (1913), this court stated: ' "... (T)he general rule is that a master is liable for the tort of his servant, whether negligent or voluntary, if done by his command or in the prosecution and scope of his business. (Cit.) The expressions, 'in the scope of his business,' or 'in the scope of his employment,' or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master's business, that is, if the servant is at the time engaged in serving the master, the latter will be liable. (Cit.)" ' The court further stated at 119 Ga. 478, 167 S.E.2d 711, ' "(a) servant is acting within the scope of his employment when he is engaged in doing for his master what he has been directed to do, or, as it has been said, 'any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act, or a natural, direct, and logical result of it' is within the meaning of the phrase 'scope of employment.' ..." ' " International Business Machines v. Bozardt, 156 Ga.App. 794, 797, 798, 275 S.E.2d 376.

In determining whether an employee was acting within the scope of his employment at a time when he was involved in an automobile collision, we need not consider ownership of the automobile. "The question of ownership of the automobile is immaterial, so long as it is made to appear that the servant employee was operating it while under the control and direction of his employer, and within the scope of his employment. [Cit.]" Lewis v. Miller Peanut Co., 77 Ga.App. 380, 383, 49 S.E.2d 221.

"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 liable for an injury occasioned while the servant is en route to or from his work. 5 Blashfield's Cyclopedia of Automobile Law and Practice, 196, § 3041." Stenger v. Mitchell, 70 Ga.App. 563, 566, 28 S.E.2d 885. See also Bailey v. Murray, 88 Ga.App. 491, 496, 77 S.E.2d 103. An exception to the general rule is to be made, however, where the employee undertakes a special mission at the direction of the employer. See generally Chappell v. Junior Achievement, 157 Ga.App. 41, 276 S.E.2d 98. As it is said, "Where the employee, before or after customary working hours, is on his way home after performing, or on the way...