Massey v. Henderson

• Decision Date: 15 April 1976
• Docket Number: No. 51686,3,Nos. 1,2,51686,s. 1
• Citation: 138 Ga.App. 565,226 S.E.2d 750
• Parties: Peggy J. MASSEY et al. v. Melva HENDERSON et al
• Court: Georgia Court of Appeals

Page 750

226 S.E.2d 750

138 Ga.App. 565

Peggy J. MASSEY et al. v. Melva HENDERSON et al.

No. 51686.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 15, 1976.

Rehearing Denied May 10, 1976.

Parker & O'Callaghan, James I. Parker, Cedartown, L. B. Kent, Columbus, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, A. J. Land, W. G. Scrantom, Jr., Columbus, for appellees.

MARSHALL, Judge.

Appellant brought suit for personal injuries arising from an automobile collision with a car owned by appellee, Saunder's Leasing System, Inc., and being operated at the time of the collision by one Clowdus. Appellant contends that Clowdus was the servant of Saunder's Leasing and was acting within the scope of his employment at the time and place of the collision. Saunder's Leasing moved for summary judgment contending otherwise and the trial court granted the motion.

From the affidavits and depositions in the record bearing on this issue, it appears that Clowdus was a branch manager of Saunder's Leasing at an Ohio branch. The car was owned by Saunder's Leasing and supplied to Clowdus to be used by him on company business and for his own personal use at his discretion. Saunder's Leasing paid all the expenses on the car, including gasoline, and paid Clowdus a straight salary plus bonuses. On the day of the accident, Clowdus stated that he was driving the car from Ohio to Birmingham, Alabama, 'to pick up my wife and son and bring them back to Ohio. They had been visiting with her parents (in Birmingham).' He also stated he had no plans of conducting any business for Saunder's Leasing on the trip but that the trip was entirely personal. His immediate supervisor stated that Alabama was not in the territory worked by Clowdus and that he had no knowledge of any business for Saunder's Leasing that Clowdus could have perform on this trip. Held:

1. It is well established under Georgia law that a presumption arises when a servant is operating his employer's vehicle at the time of a collision, he was in the scope of his employment. Ga. Power co. v. Mozingo, 132 Ga.App. 666, 668, 209 S.E.2d 66; Dawson Motor Co. v. Petty, 53 Ga.App. 746, 749, 186 S.E. 877. The burden is then upon the master 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. Abelman v. Ormond,53 Ga.App. 753, 761, 187 S.E. 393. In this case, Saunders' Leasing has produced unconstradicted evidence that Clowdus was in no manner performing any service that could be considered in the prosecution of his employer's business, and for this reason has rebutted the presumption as a matter of law.

Appellants, in their supplemental brief, rely on Pest Masters, Inc. v. Callaway, 133 Ga.App. 123, 210 S.E.2d 243 and F. E. Fortenberry & Sons v. Malmberg, 97 Ga.App. 162, 102 S.E.2d 667. The rule set forth in these cases and in Ayers v. Barney A. Smith Motors, 112 Ga.App. 581, 582, 145 S.E.2d 753 is: 'Where there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment the presumption is not overcome as a matter of law even though the master and servant positively testify that what he was doing was without the scope of his employment. The issue is generally one for the jury.' (Emphasis supplied.) F. E. Fortenberry & Sons v. Malmberg, 97 Ga.App. 162, 166, 102 S.E.2d 667, 671, supra.

This rule does not mean that in every case wherein the servant is operating an employer-furnished vehicle at the time of a collision, the presumption may never be overcome, and the question is always one for the jury. Such an interpretation of the rule would mean in every such collision, the master-servant issue should go to the jury. The correct rule is that if there is other evidence from which the jury might legitimately infer that the employee was acting within the scope of employment, then the issue should go to the jury. In Ayers, the other evidence was the fact that the servant, a car salesman, was driving a demonstrator car on a personal trip on which 'he would have attempted to interest a prospect in buying an automobile on this particular trip.' In Fortenberry, the other evidence was that the employee was carrying lumber during working hours from his employer's lumber yard to the employee's home because the employer 'desired to remove it from the lumber yard in order to be rid of it.' In Past Masters, the other evidence was that the employer 'was subject to call at any time.' See also Ga. Power Co. v. Mozingo, 132 Ga.App. 666, 209 S.E.2d 66, supra, in this regard.

In the present case there is no other evidence that Clowdus was even in any remote way serving the benefit of his employer or acting on his behalf. The cases are clear that, where there is no such evidence, the presumption is overcome as a matter of law. McKinney v. T.I.M.E.-D.C., Inc., 134 Ga.App. 57, 213 S.E.2d 166; Atlanta Blue Print & Phote Reproduction Co. v. Kemp, 130 Ga.App. 778, 204 S.E.2d 515; Sparks v. Buffalo Cab Co., Inc., 113 Ga.App. 528, 148 S.E.2d 919. See also Harper v. Brown, 122 Ga.App. 316(1), 176 S.E.2d 621, where this court, in a whole court opinion, reversed the trial court's denial of a judgment n.o.v. in favor of a defendant corporation whose president was involved in a collision while operating a corporation-owned car on a purely personal trip on Sunday.

The fact that one of the purposes of furnishing the car to Clowdus was for his own pleasure does not bring this pleasure trip within the scope of his employment. The test is whether the particular activity engaged in serve in some way to prosecute the employer's business, that is, doing some work which will benefit the employer for which the employee is to be compensated. The furnishing of a car and paying its expenses is merely additional compensation.

'When a servant is permitted by the master to use a vehicle for the servant's own pleasure or business, wholly disconnected from that of the master, and a third party is injured by the servant's negligent operation of it while on his own mission, the master cannot be held liable under the doctrine of respondeat superior.

'Ownership of the vehicle alone is insufficient to establish any liability on the part of the owner, and mere proof of ownership is not sufficient to establish prima facie that the vehicle, though operated by a servant of the owner, was being used in the owner's business or within the scope of the servant's employment.' Price v. Star Service & Petroleum Corp., 119 Ga.App. 171, 166 S.E.2d 593.

2. We find no error in the trial court's denial of appellant's motion for continuance, made for the purpose of further discovery by appellant. It appears that the information sought by the discovery documents, which were pending at the time summary judgment was granted, pertained to facts already established and undisputed and would not have affected the outcome. The record shows that the trial court had already allowed two postponements to allow the parties to make discovery. 'The grant or denial of a continuance is a matter within the discretion of the trial judge and unless clearly abused will not be interfered with. Smith v. Davis, 121 Ga.App. 704, 705, 175 S.E.2d 28. This applies in summary judgment proceedings. Code Ann. § 81A-156(f).' Calcutta Apts. v. Linden & Deutsch, 131 Ga.App. 743, 744, 206 S.E.2d 559, 560. No abuse appears in this case.

Judgment affirmed.

BELL, C.J., DEEN, P.J., and QUILLIAN, CLARK and STOLZ, J., concur.

EVANS, J., dissents.

PANNELL, P.J., and WEBB, J., concur in the judgment of the dissent.

EVANS, Judge (dissenting).

George E. Clowdus, Jr., a branch manager for Saunder's Leasing System, Inc., of Delaware, Ohio, while driving an automobile of Saunders Leasing System, Inc. in Alabama was involved in an automobile collision with one driven by D. M. Henderson in which Mrs. Peggy Joyce Massey was...