Price v. Star Service & Petroleum Corp., s. 44213

• Decision Date: 11 February 1969
• Docket Number: Nos. 44213,44214,No. 2,s. 44213,2
• Citation: 119 Ga.App. 171,166 S.E.2d 593
• Court: Georgia Court of Appeals
• Parties: Bingham PRICE, as Next Friend and Individually v. STAR SERVICE & PETROLEUM CORPORATION et al. Bingham PRICE v. STAR SERVICE & PETROLEUM CORPORATION et al

Page 593

166 S.E.2d 593

119 Ga.App. 171

Bingham PRICE, as Next Friend and Individually v. STAR SERVICE & PETROLEUM CORPORATION et al.

Bingham PRICE v. STAR SERVICE & PETROLEUM CORPORATION et al.

Nos. 44213, 44214.

Court of Appeals of Georgia, Division No. 2.

Feb. 11, 1969.

Syllabus by the Court

1. (a) When it appears that a vehicle was, at the time in question, being operated by an employee of its owner, an inference arises that it was being operated by the employee within the scope of his duty and employment.

(b) When there is positive, uncontradicted testimony that the employee was not at the time on any mission in behalf of his employer or in the course of his employment, but that he was on a purely personal mission, the inference is overcome.

(c) 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 on the doctrine of respondeat superior.

(d) 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.

(e) Operation of the master's vehicle by a servant with the master's knowledge, consent and permission, but on a mission purely personal to the servant, places the servant in the same position as that of any borrower of a vehicle, and as to the use of the vehicle on the personal mission the relationship is that of bailor and bailee only.

(f) That the permitted garaging of the employer's vehicle by the employee at his home may have been of some benefit to the employer does not impose liability for an injury inflicted by the employee's negligent operation of the vehicle while on a purely personal mission.

(g) There was no conflict in the employee's testimony raising a question of credibility for submission to a jury.

(h) A self-serving declaration within the proscription of the hearsay rules of evidence is one made out of court, not under oath, and which is of benefit to or in the interest of the declarant.

2. Where there is a sufficient piercing of the pleadings by answers to interrogatories, affidavits, depositions or admissions on file to demonstrate the absence of any genuine issue of fact as to whether the servant was, at the time in question, engaged in a purely personal mission while using his employer's vehicle, the grant of a summary judgment on motion of the employer is demanded.

3. There is no requirement that the court permit the introduction of oral testimony, either by the calling of an opposite party or otherwise, at a hearing on a motion for summary judgment.

James F. Galbreath was employed by Star Service & Petroleum Corporation as its supervisor in an area including a portion of Georgia, North Carolina and South Carolina. His duties required that he travel in the area and the company furnished him an automobile for that purpose, allowing him to garage it at his home and to use it for personal business or pleasure.

On Sunday, March 10, 1968, Calbreath and his wife went in the car to Roosevelt Baptist Church where he preached at the morning service. After conclusion of the service at about 12:10 p.m., he and his wife started back home and on the way the company car (which he was driving) collided at an intersection with that of Bingham Price, which was being operated by his daughter, Rebecca Ann, and she suffered injury.

Suits were filed by Mr. Price individually, and as next friend for his minor daughter against Mr. Galbreath and Star Service & Petroleum Company seeking the recovery of damages. Plaintiffs served interrogatories on Mr. Galbreath seeking to ascertain the nature of his employment, and whether he was acting as agent of his employer in operating the car at the time of the collision. He answered under oath that the car belonged to the company and that on that date he was generally in its employment, but asserted that his use of the car in going to and returning from the church was purely a personal use, having nothing to do with his duties of employment. He admitted that his use of the vehicle was with the consent and permission of his employer, that he had the discretion of garaging it at his home and that he had done so the night before. When he used it for personal purposes he paid for the gasoline and oil used. On this occasion he had gone directly from his home to the church, and was returning to his home without deviation and without any intention of going or stopping elsewhere. There had been no stops between the church and the intersection where the collision occurred save when required by traffic signs or signals.

Star Service & Petroleum Company moved for a summary judgment, submitting in support of its motion the interrogatories and Mr. Galbreath's answers. Plaintiffs sought to call him for oral examination at the hearing on the motion, but were denied the privilege of doing so.

The motion for summary judgment was sustained, and plaintiffs appeal, enumerating as error the sustaining of the motion and granting of a judgment dismissing Star Service & Petroleum as a defendant in the cases, and the refusal of the court to permit the calling of Galbreath for oral examination at the hearing on the motion.

Ernest Bostick, Smyrna, for appellant.

Bryan, Carter, Ansley & Smith, M. D. McLendon, Tommy T. Holland, Atlanta, for appellee.

EBERHARDT, Judge.

1. We affirm. While there is an inference that when a vehicle is operated by an employee of the owner it is operated within the scope of his employment and duty, the inference is overcome when there is uncontradicted positive evidence that the employee was, at the time in question, on a purely personal mission and not in the performance of any duty as an employee or servant of the owner. Brennan v. National NuGrape Co., 106 Ga.App. 709, 128 S.E.2d 81; Royal Undertaking Co. v. Duffin, 57 Ga.App. 760(2), 196 S.E. 208; Allgood v. Dalton Brick & Tile Corp., 81 Ga.App. 189(3), 58 S.E.2d 522.

The factual situation here clearly comes within the ruling in Fielder v. Davison, 139 Ga. 509(5), 77 S.E. 618 that: 'If while a servant is not engaged in the performance of his master's business, and during a time when he is free to engage in his own pursuits, his master lends him an automobile, and while he is using it for his own pleasure, disconnected from any business of the master, he negligently injures another by its operation, the servant will stand in the same position as would another borrower; and the master will not be liable for his acts on the doctrine of respondeat superior.' Accord: Eason v. Joy Eloral Co., 34 Ga.App. 501(1), 130 S.E. 352; Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga.App. 117, 185 S.E. 147; Royal Undertaking Co. v. Duffin, 57 Ga.App. 760(1), 196 S.E. 208, supra; Graham v. Cleveland, 58 Ga.App. 810, 811(1), 200 S.E. 184; Roper v. Amer. Mut., etc., Ins. Co., 69 Ga.App. 726, 26 S.E.2d 488; Aetna Cas. & Surety Co. v. Fulmer, 81 Ga.App. 97, 57 S.E.2d 865; Ruff v. Gazaway, 82 Ga.App. 151, 60 S.E.2d 467; Johnson v. Webb-Crawford Co., 89 Ga.App. 524, 80 S.E.2d 63; Johnson v. Brant, 93 Ga.App. 44, 90 S.E.2d 587; Fulton Bag & Cotton Mills v. Eudaly, 95 Ga.App. 644, 98 S.E.2d 235; Sparks v. Buffalo Cab Co., Inc., 113 Ga.App. 528, 148 S.E.2d 919; United States Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823, 5 S.E.2d 9; Young v. Kickliter, 213 Ga. 42, 96 S.E.2d 605; Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 114 S.E.2d 138.

Ownership of the vehicle alone is insufficient to establish liability on the part of the owner, and mere proof of ownership is not sufficient to establish prima facie that the car was being driven by a servant of the owner, about the owner's business and within the scope of his employment. Gillespie v. Mullally, 30 Ga.App. 118, 119, 117 S.E. 98; Yellow Cab Co. v. Nelson, 35 Ga.App. 694(2), 134 S.E. 822. And see Frankel v. Cone, 214 Ga. 733, 107 S.E.2d 819.

Davies v. Hearn, 45 Ga.App. 276, 164 S.E. 273, allowing a recovery for an injury occasioned while the servant, who was permitted to take the vehicle home overnight, was on the way home after leaving his place of work, is distinguishable and does not require a different result. Although there had been a deviation by the servant from his usual route home, he had returned to it before the accident occurred. Likewise, the case of Southern Gas Corp. v. Cowan, 89 Ga.App. 810, 81 S.E.2d 488 is distinguishable. The rationale of these cases is apparent from the assertion of the court in Cowan at page 812, 81 S.E.2d at page 490: 'We do not mean to say that after Bowman (the servant) once arrived at his home then on any subsequent trip and return home for his personal convenience or pleasure he would be within the scope of his employment. What we have said pertains only to the initial taking of the automobile to his home where it would be kept subject to the company call and to his return home after making such a call.'

Appellants contend that the garaging of the car at the home of its servant by Star was in its interest and for its benefit because it made the vehicle immediately available should the servant be called to go on company business to one of the service stations, or on some other mission for the company, and that this raises a jury question as to whether the company should be held under the circumstances here.

We cannot agree. In Frankel v. Cone, 214 Ga. 733, 736, 107 S.E.2d 819, 821 supra, a personal injury action was brought against the owner of a vehicle and recovery sought ...