Pest Masters, Inc. v. Callaway

• Decision Date: 22 October 1974
• Docket Number: No. 3,No. 49643,49643,3
• Citation: 133 Ga.App. 123,210 S.E.2d 243
• Parties: PEST MASTERS, INC. v. Forrest D. CALLAWAY
• Court: Georgia Court of Appeals

Page 243

210 S.E.2d 243

133 Ga.App. 123

PEST MASTERS, INC. v. Forrest D. CALLAWAY.

No. 49643.

Court of Appeals of Georgia, Division No. 3.

Oct. 22, 1974.

Shoob, McLain, Jessee, Merritt & Lyle, M. David Merritt, Atlanta, for appellant.

Charles O. Baird, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Robert DeWayne Black, an employee of Pest Masters, Inc., while driving his employer's automobile from his home to work, was involved in a rear-end collision with a vehicle driven by Forrest D. Callaway.

Callaway sued Black and Pest Masters, Inc. for personal injuries arising out of the collision, alleging the automobile was being operated within the scope of Black's employment while about the business of his employer.

Defendants answered and denied liability. After discovery, Pest Masters, Inc. moved for summary judgment. A hearing was conducted, motion was denied. Pest Masters, Inc. appeals. Held:

1. The evidence shows that as a part of the consideration of his employment, defendant Black was furnished an automobile to be used to and from work. It also shows that he was subject to call at any time, and he had full authority to drive this automobile any way that he wished. This evidence raised a presumption that the defendant-employee was operating the defendant-employer's automobile within the scope of his employment at the time of the collision.

2. Defendants admit that when an employee is involved in a collision with another vehicle, while driving his master's automobile, a presumption arises that he is within the scope of employment, and cite Fortenberry & Sons v. Malmberg, 97 Ga.App. 162, 102 S.E.2d 667; Ayers v. Barney A. Smith Motors, 112 Ga.App. 581, 145 S.E.2d 753, and others.

3. But, then defendants argue that ordinarily a servant in going to and from work is on a mission purely personal to himself and is not within the scope of employment, and cite Stenger v. Mitchell, 70 Ga.App. 563, 28 S.E.2d 885; Bailey v. Murray, 88 Ga.App. 491, 496, 77 S.E.2d 103, and others.

4. But what defendants overlook in this case, and which point they have not addressed at all, is that the evidence here shows that the master furnished the automobile to the servant for the purpose of going to and returning from work, which was a part of the consideration of the employment. This completely differentiates this case from those cited by defendants. For here the employer and employee both agreed that the employee would be paid so much in money, and would also be furnished the master's car to use in going to work and returning from work. The master thus recognized that it was beneficial to the master to have the servant drive the car to and from work. In American Hardware, etc., Ins. Co. v. Burt, 103 Ga.App. 811, 815, 120 S.E.2d 797, 800, this court held: 'An agreement that the employment relationship shall continue during the period the employee is going to and returning from work may be inferred from the fact that transportation is furnished by the employer as an incident thereof. Kobe v. Industrial Acc. Commission, 35 Cal.2d 33, 215 P.2d 736. Where transportation is furnished as an incident of the employment, the accident incurred during such transportation is compensable. 99 C.J.S. Workmen's Compensation § 235 (p. 834). If there is a causal connection between the nature of the employment and the travel because the business of the master creates the necessity therefor, the injury is compensable. Taylor v. Meeks, 191 Tenn. 695, 236 S.W.2d 969. See also 50 A.L.R.2d 363; 141 A.L.R. 862; 139 A.L.R. 1472; 50 A.L.R.2d 407. Whether the transportation furnished is for the purpose of getting the employee promptly to work in the morning and home at night, or of getting promptly to and from the premises during the lunch hour period, is not in itself decisive, the question being whether the furnishing of the transportation is a benefit to the employer and an incident of the employment contract. In this case it served both functions.'

Thus, it is shown that the employment, under such circumstances, is in...