Southern Gas Corp. v. Cowan, s. 34974
| Decision Date | 17 March 1954 |
| Docket Number | No. 2,Nos. 34974,34975,s. 34974,2 |
| Citation | 89 Ga.App. 810,81 S.E.2d 488 |
| Parties | SOUTHERN GAS CORP. v. COWAN. BOWMAN v. COWAN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The evidence authorized the findings that the defendant Bowman, at the time of the collision, was an employee of the defendant Southern Gas Corporation and was within the scope of his employment.
2. The court erred in denying the defendants' second motion for a mistrial, and therefore erred in denying the defendants' amended motions for new trial.
J. C. Cowan sued Larry Bowman and Southern Gas Corporation for damages allegedly caused by the defendants' negligence. The petition alleged that the defendant Bowman was an employee of the defendant gas corporation; that the damages sued for resulted from a collision between the plaintiff's automobile and the gas corporation's automobile; that at the time of the collision Bowman was operating the corporation's automobile, and was within the scope of his employment; that Bowman was guilty of specific acts of negligence which proximately caused the collision. On the trial the jury returned a verdict for the plaintiff against both defendants. The defendants' amended motion for new trial was denied and they except.
Marshall, Greene, Baird & Neely, Burt DeRieux, Atlanta, for plaintiffs in error.
Walter E. Baker, Jr., Decatur, for defendant in error.
1. It is contended that the evidence did not authorize the findings that Bowman was an employee of Southern Gas Corporation, and that at the time of the collision he was within the scope of his employment. The contention is without merit. Where an automobile is involved in a collision and it is shown that the automobile is owned by a person, and that the operator of the automobile is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show that at the time of the collision such operator was not within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga.App. 746, 749, 186 S.E. 877. Abelman v. Ormond, 53 Ga.App. 753, 761, 187 S.E. 393, 398. The evidence did not rebut the presumption in the present case. The defendant Bowman testified: that at the time of the collision he worked for Southern Gas Corporation as a salesman and serviceman; that he worked solely on a commission basis; that the company did not tell him how, when or where to make his calls on his prospects; that he could make calls at any time during the day or night in his own discretion; that the company provided him with an automobile for use in his work; that he had the power and authority to use the automobile for his own personal needs, as well, and he kept the automobile at home overnight; that the company furnished and paid for the automobile expense in addition to his commission; that he got paid only when he made a sale, and not unless he did; that on the day of the collision with Mr. Cowan he had finished his last call about 5:30 o'clock p. m., and had not performed any services for the Southern Gas Corporation from that time until the time of the collision, which was about 7:30 or 8 o'clock p. m.; that he did not intend to make any more calls that night or to do any more work for Southern Gas until the next morning, but was on call for company business and would have had he been called out; that at the time of the accident he was going toward Decatur on his way home.
We think that the evidence authorized the finding that the defendant Bowman was subject to the direction and control of the company, and was thus its employee; and that at the time of the collision he was within the scope of his employment. The defendant was on call at all hours of the night and kept the company automobile to attend to this business. Therefore, the defendant Bowman did not keep the company automobile at his home merely for his own accommodation and convenience. To the extent that he was subject to call at all hours and had the automobile there to use in case he was so called, the keeping...
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...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, 8......
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