Marter v. Scott, 56751

• Decision Date: 04 November 1987
• Docket Number: No. 56751,56751
• Citation: 514 So.2d 1240
• Parties: James H. MARTER v. Beverly T. SCOTT and Pepsi-Cola, Inc.
• Court: Mississippi Supreme Court

Page 1240

514 So.2d 1240

James H. MARTER v. Beverly T. SCOTT and Pepsi-Cola, Inc.

No. 56751.

Supreme Court of Mississippi.

Nov. 4, 1987.

Preston Davis Rideout, Jr., Fraiser Burgoon & Abraham, Greenwood, for appellant.

Philip B. Terney, Susan D. Fahey, Robertshaw, Terney & Noble, Greenville, for appellees.

En Banc.

HAWKINS, Presiding Justice, for the Court on Part I.

ROY NOBLE LEE, Chief Justice, for the Court on Part II.

PART I.

James H. Marter has appealed from a summary judgment in favor of a Pepsi-Cola, Inc., bottling plant in the circuit court of Grenada County finding that a driver of a car searching for a mechanic to assist a disabled Pepsi truck and its driver stranded on the highway was not an agent of the bottler.

We find there was no issue of fact on this question and affirm.

FACTS

Pepsi-Cola, Inc., the defendant in this case, is a local bottling plant corporation domiciled and with principal offices in Senatobia, Tate County. On July 1, 1983, Beverly T. Scott and Warren Brown were both employed by the defendant, she as a secretary-receptionist, and he as truck driver. They were personally acquainted and friends. On that day Scott, who lived in Hernando, was on her vacation driving her own automobile south on Highway 55, a four-lane interstate highway, when she observed a Pepsi-Cola truck stopped on the right shoulder. As she drove past the truck she recognized Brown. Scott continued approximately a mile to the Coldwater exit, where, because she knew Brown, she got off the highway, turned around and headed north to the truck to offer assistance.

When she got even with the truck, she parked her car on the left shoulder, crossed the median and asked Brown if he would like a ride to the plant. Brown told her, no, asked her if she would get in touch with a mechanic. Scott returned to her car and set off to get a mechanic.

While looking for the first place in which she could turn around and head south again, and about three miles south of Hernando she noticed a place where vehicles could cross the median. There was a sign, however (which she did not notice at the time), which prohibited cars from crossing the median.

Scott pulled over onto the left lane and was proceeding onto the shoulder in order to cross the median. There was great deal of traffic headed north on this day, and some cars braked suddenly behind her. Behind these the plaintiff Marter was driving an eighteen-wheel International truck and trailer. In order to avoid a collision with the suddenly braking cars just ahead, he pulled off onto the shoulder and struck Scott's automobile. Scott was not injured, but Marter suffered personal injuries in the accident.

On January 21, 1985, Marter filed suit in the circuit court of Grenada County naming Scott and Pepsi-Cola, Inc., as defendants. As one of its defenses, Pepsi-Cola, Inc., denied Scott was an agent and employee acting within the scope of her employment at the time of the accident.

Following the taking of depositions in which the facts as above related were developed, Pepsi-Cola, Inc., moved for summary judgment, which was sustained by the circuit judge.

An order dismissing the case with prejudice against Pepsi-Cola, Inc., was entered by the circuit judge on July 19, 1985.

Following this, on August 5, 1985, a stipulation of dismissal without prejudice was entered regarding Scott pursuant to Rule 41(a)(1)(ii) of the Mississippi Rules of Civil Procedure.

Marter has appealed from the order dismissing the case with prejudice as against Pepsi-Cola, Inc.

PART II.

Appellant assigns only one error in the trial below, i.e., Beverly T. Scott was an "emergency employee" of Pepsi-Cola, Inc., acting within the course and scope of her employment at the time of her collision with the appellant and the lower court erred in granting the summary judgment motion of Pepsi-Cola, Inc.

At page 2 of the appellant's brief, he states that the only issue on this appeal is whether Beverly T. Scott at the time of the motor vehicle collision with plaintiff was an emergency employee of Pepsi-Cola, Inc.

Paragraph (6) of the complaint charges that Beverly T. Scott was the agent of Pepsi-Cola, Inc. as follows:

At and about the date and place first mentioned above in paragraph 5, the Defendant, Beverly T. Scott, was the agent, servant, or employee of Defendant Pepsi-Cola, Inc. and was acting within the course and scope of her employment.

The sole issue presented to the trial court in Pepsi-Cola's motion for summary judgment is whether Scott was acting within the scope and course of her employment with Pepsi-Cola at the time of the accident, and, in addition, whether Pepsi-Cola employee Warren Brown had the authority, either actual or apparent, to request Scott to contact a mechanic for the disabled truck, so as to bind Pepsi-Cola by Scott's actions.

As stated on appeal, the appellant Marter relies upon the emergency employment doctrine. In order to invoke that doctrine, the burden is on the appellant to show that an emergency did exist. Saldukas v. McKerns, 340 Pa. 113, 16 A.2d 30 (1940). The plaintiffs must establish (1) that the situation is created suddenly and unexpectedly, and (2) that the emergency rendered it necessary, in the employer's interest, that the employee have assistance to perform the work the employer has required. Heckman v. Warren, 124 Colo. 497, 238 P.2d 854 (1951); Hall v. O.C. Whitaker Co., 143 Tex. 397, 185 S.W.2d 720 (1945).

Ms. Scott was on a week's vacation from her employer, Pepsi-Cola. She knew Brown well, recognized him when she passed, and turned around to check on him. There was no urgency in the breakdown because the truck was not blocking the freeway, and Brown could have performed the work himself. He had three options: (1) he could have waited for some action to be taken by the warehouse manager; (2) he could have waited for a highway patrolman; or (3) he could have walked the one mile to the Coldwater exit and called the plant. These options may have entailed some inconvenience on the part of Brown, but the mere avoidance of inconvenience will not invoke the doctrine of sudden emergency employment. Hall, 143 Tex. at 403, 185 S.W.2d at 723. Brown's belief that he should remain with the truck is not sufficient to show an emergency. Central Ky. Traction Co. v. Miller, 147 Ky. 110, 143 S.W. 750 (1912) (holding that it is not sufficient to show simply that the employee believed that an emergency existed).

The proper issue in this case, as presented to the lower court, is not whether Scott was an emergency employee, but whether she was acting within the scope of her regular employment with Pepsi-Cola. This Court discussed the question of determination of scope of employment in Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250 (1945). Therein it was stated that the scope of employment extends to everything "incident to that ultimate purpose which constitutes [the employee's] job," 199 Miss. at 59, 23 So.2d at 252. As authority for the standard, Creekmore cites Sec. 228 Restatement (Second) of Agency (1958). That section provides:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

(A) Scott was employed by Pepsi-Cola as a secretary/receptionist. She tabulated the number of hours worked by other employees and the number of beverages sold, and she occasionally made bank deposits and ran errands. Her duties did not require her to locate or report disabled delivery trucks.

(B) At the time of the accident, Scott was enjoying her one-week paid vacation from her job at Pepsi-Cola. She was travelling on Interstate 55 en route to a church-league softball game. Her employment with Pepsi-Cola required Scott to travel Interstate 55 only when going to and coming from work.

(C) Although Scott testified in her deposition that she would have stopped to help her friend regardless of whether he had been in a Pepsi-Cola truck, it can be conceded that Scott's conduct was actuated, at least in part, by a purpose to help her employer. However, this does not of itself constitute her as an employee of Pepsi-Cola at the particular time of the accident.

The facts of this case are undisputed as to the question of agency. Scott was not acting as an emergency employee but merely as a friend volunteering to assist another friend, Brown, in hopes that he might avoid some inconvenience. The question before the lower court, and here, is whether or not, on those undisputed facts a summary judgment was proper.

If under the undisputed facts of this case a jury must determine liability, then in almost every situation where one person asks another to do a simple favor, or deliver a message, etc., liability could be imposed on that person, in the event an accident occurred. That cannot be!

We are of the opinion that there was a question of law, only, for the lower court, where the sudden emergency employment doctrine was not presented, and that the lower court correctly granted the summary judgment. Likewise, we hold that the uncontradicted facts do not support a contention that Ms. Scott is an "emergency employee" and, on that theory, the summary judgment was correctly granted.

Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

As to Part I: ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.

As to Part II: DAN M. LEE, P.J., and PRATHER, ROBERTSON,...