Viau v. Fred Dean, Inc.

• Decision Date: 17 March 1992
• Docket Number: A91A2223,A91A2106,A91A2248 and A91A2249,A91A2235,A91A2239,Nos. A91A2105,s. A91A2105
• Parties: VIAU v. FRED DEAN, INC. et al. DEAN et al. v. VIAU. DEAN et al. v. WARREN. DEAN et al. v. VIAU. DEAN et al. v. PES. PES v. DEAN et al. DEAN et al. v. PES.
• Court: Georgia Court of Appeals

Page 604

418 S.E.2d 604

203 Ga.App. 801

VIAU v. FRED DEAN, INC. et al.

DEAN et al. v. VIAU.

DEAN et al. v. WARREN.

DEAN et al. v. VIAU.

DEAN et al. v. PES.

PES v. DEAN et al.

DEAN et al. v. PES.

Nos. A91A2105, A91A2106, A91A2223, A91A2235, A91A2239,

A91A2248 and A91A2249.

Court of Appeals of Georgia.

March 17, 1992.

Reconsiderations Denied April 3, 1992.

Certiorari Denied June 12, 1992.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Charles F. Overby, Peter J. Daughtery, Columbus, for Viau.

Buchanan & Land, Clay D. Land, Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Columbus, for FDI, etc.

Douglas L. Breault, Columbus, for Warren.

Agnew & Schlam, G. Michael Agnew, Paul E. Schlam, Columbus, for Pes.

CARLEY, Presiding Judge.

Fred Dean is the majority shareholder and president of Fred Dean, Inc. (FDI). While driving a vehicle belonging to FDI, Dean was involved in a collision with two other vehicles. The collision occurred at 2:00 a.m. and tests indicated that Dean's blood-alcohol level was 0.168. Seeking to recover for injuries sustained in the collision, Brenda Warren, Kathleen Wallace Viau and Montica Pes brought suit against Dean and FDI. Dean and FDI answered and, after discovery, they filed motions for partial summary judgment addressing the viability of certain theories of recovery and the recoverability of punitive damages. The trial court's rulings on these motions resulted in the filing of the instant seven separate appeals, which are hereby consolidated for appellate disposition in this single opinion.

CASE NOS. A91A2105

and A91A2248

1. FDI's liability was premised, in part, upon OCGA § 51-1-40(b). That statute provides that one who "knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such ... person when the sale, furnishing, or serving is the proximate cause of such injury or damage." OCGA § 51-1-40(b). The trial court granted summary judgment in favor of FDI as to its liability under this statute and, in these cases, Viau and Pes appeal from that ruling.

It is urged that a genuine issue of material fact remains as to FDI's liability under OCGA § 51-1-40(b) because, some six or seven hours before the collision, Dean had consumed alcohol on the business premises of FDI. The evidence does show that, between 6:30 p.m. and 8:00 p.m., Dean shared food and alcohol with three other FDI employees while on FDI's business premises. However, this occurred after business hours and it was not in connection with any planned employment-related social event for which FDI purchased the food and alcohol. The food and alcohol were provided entirely by the other FDI employees. Under this evidence, it is clear that FDI neither sold nor served alcohol to Dean.

The evidence might authorize a finding that FDI, through Dean's acquiescence and participation, furnished the premises upon which Dean consumed alcohol. However, OCGA § 51-1-40(b) does not impose liability upon one who merely furnishes the premises upon which alcohol is consumed. It imposes liability only upon one who furnishes the alcohol itself. " 'Furnish' is to 'provide for use; to supply.' A 'furnisher' is 'one who furnishes or provides supplies of any kind.' [Cit.] A 'furnisher' is 'one who supplies or fits out.' [Cit.] To furnish or supply necessarily carries with it the idea of ownership, property in, or dominion over the thing furnished by the one who furnishes." Southern Express Co. v. State, 107 Ga. 670, 673-674, 33 S.E. 637 (1899). The uncontroverted evidence of record demonstrates that FDI did not furnish any alcohol to Dean. Compare Whelchel v. Laing Properties, 190 Ga.App. 182, 183(1), 378 S.E.2d 478 (1989); Southern Express Co. v. State, 1 Ga.App. 700(3), 58 S.E. 67 (1907). The alcohol was furnished to Dean by the FDI employees who shared their alcohol with him. It follows that the trial court correctly granted summary judgment in favor of FDI as to any liability pursuant to OCGA § 51-1-40(b).

CASE NOS. A91A2106,

A91A2223, A91A2235, A91A2239 and A91A2249

2. FDI's liability was also premised, in part, upon respondeat superior. FDI appeals from the denial of its motion for summary judgment as to this theory of its liability.

" ' "Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle 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 otherwise." ...' [Cit.] ' " '(T)he presumption that the servant is serving his master within the scope of his employment may, unless supported and corroborated by other evidence, be overcome by uncontradicted evidence.' " (Cit.)' [Cit.]" Curtis, Inc. v. Kelley, 167 Ga.App. 118, 119, 305 S.E.2d 828 (1983). See also Divecchio v. Mead Corp., 184 Ga.App. 447, 448(2), 361 S.E.2d 850 (1987).

The uncontroverted evidence shows that Dean left FDI's business premises no later than 11:00 p.m. and returned at 2:00 a.m. only to lock up. After doing so, he left for home, intending to stop and get something to eat on the way. Shortly after leaving FDI's business premises, however, the collision occurred. On this evidence, the presumption that Dean was in the scope of his employment at the time of the collision has been overcome. " ' " 'As a general rule, a servant in going to and from his work[, even in a company car,] acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work. (Cits.)' " ' [Cit.]" Healthdyne, Inc. v. Odom, 173 Ga.App. 184(1), 325 S.E.2d 847 (1984). At the time of the collision, Dean had completed any tasks within "the scope of his employment and [was] not in the prosecution of [FDI's] business but on a purely personal venture. The additional [fact] that he kept the vehicle 24 hours a day ... [is] at most [an] inconclusive [inference] which did not contradict the direct evidence...." Melton v. Gilleland & Sons, Inc., 176 Ga.App. 390, 391(2), 336 S.E.2d 315 (1985).

It follows that the trial court erred in denying FDI's motion for summary judgment as to its vicarious liability for Dean's alleged negligence. Coffee Chrysler-Plymouth-Dodge v. Nasworthy, 198 Ga.App. 757, 758, 403 S.E.2d 453 (1991); Fred A. York, Inc. v. Moss, 176 Ga.App. 350, 335 S.E.2d 618 (1985); Curtis, Inc. v. Kelley, supra.

3. FDI appeals the denial of its motion for summary judgment as to its liability under a negligent entrustment theory.

" 'Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. (Cits.)' [Cit.]" (Emphasis in original.) Worthen v. Whitehead, 196 Ga.App. 678, 396 S.E.2d 595 (1990). Thus, liability under this theory, is premised upon both the exercise of the power to entrust an instrumentality and actual knowledge of the incompetency of the one to whom the instrumentality is entrusted. Mere exercise of the power to entrust an instrumentality without the actual knowledge of incompetency or mere possession of the requisite actual knowledge without the requisite power to entrust will not support a finding of liability under this theory.

There is evidence that Dean's wife, who held a corporate position in FDI, had actual knowledge of Dean's alleged incompetency to be entrusted with a vehicle. However, the vehicle that Dean was operating at the time of the collision did not belong to his wife. It was owned by FDI. Under the undisputed evidence of record, the only officer or agent of FDI who had both the actual knowledge of Dean's alleged incompetency and the power to entrust or withhold use of the FDI vehicle was Dean himself. A corporation can act only through its officers and agents. Dean's actual knowledge of his own alleged incompetency cannot be imputed to FDI. His "private interest in driving an automobile outweighed his duty as a representative of the corporation to ensure that an incompetent driver did not operate the corporation's automobile." Keenan v. Hill, 190 Ga.App. 108, 111(5), 378 S.E.2d 344 (1989). Assuming, without deciding, that the actual knowledge of Dean's wife could be imputed to FDI, she nevertheless had no "right to permit and prohibit [his] use of [FDI's] truck...." Jones v. Cloud, 119 Ga.App. 697, 702(1b), 168 S.E.2d 598 (1969). "A corporation is bound by knowledge of an officer or agent when the knowledge pertains to matters within the scope of the officer's or agent's duties." Keenan v. Hill,...