Westinghouse Elec. Corp. v. Scott

• Decision Date: 28 June 1974
• Docket Number: No. 2,49387,Nos. 49386,s. 49386,2
• Citation: 132 Ga.App. 245,207 S.E.2d 705
• Parties: WESTINGHOUSE ELECTRIC CORPORATION v. Charles Etta SCOTT. WESTINGHOUSE ELECTRIC CORPORATION v. Eddie W. SCOTT
• Court: Georgia Court of Appeals

Page 705

207 S.E.2d 705

132 Ga.App. 245

WESTINGHOUSE ELECTRIC CORPORATION v. Charles Etta SCOTT.

WESTINGHOUSE ELECTRIC CORPORATION v. Eddie W. SCOTT.

Nos. 49386, 49387.

Court of Appeals of Georgia, Division No. 2.

June 28, 1974.

Tillman, Brice, McTier & Coleman, George T. Talley, C. George Newbern, Valdosta, for appellant.

Gibbs & Leaphart, J. Alvin Leaphart, Jr., Jesup, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

These companion cases both present the same issue: was defendant Westinghouse's employee acting in the scope of his employment at the time of his alleged negligence?

The material facts from the depositions and affidavits of parties and witnesses are as follows: In December, 1972, a Westinghouse employee, Marvin Ginn, volunteered for and was transferred from his position as senior foreman in a Westinghouse plant in Hampton, South Carolina, to a new position of salesman. His territory for sales was to be Georgia, Alabama, Southern Mississippi, and the northern part of Florida. Having a choice of several cities in the territory in which to live, he chose Valdosta, Georgia, because of its central location. Westinghouse paid for all of Ginn's moving expenses, including moving household goods, buying his old home, baby sitting and kennel bills, but not expenses for his personal car. Westinghouse also provided Ginn with a company car for use in traveling over the assigned territory which he was to take with him to Valdosta. He was not given a specific time to move to Valdosta, but did have a business customer to see in Marianna, Florida on February 6, 1973, and decided to move his family on February 1, 1973, in conjunction with his children's school semester, and to enable him to get settled in before starting work in the new territory. He drove his personal car and his wife followed driving the company car. At a point en route between Hampton and Valdosta Ginn lost control of his car and collided with another vehicle in which plaintiff's child (Case #49386) and plaintiff's husband (Case #49387) were killed. The company car operated by Mrs. Ginn was not involved in the collision. Ginn was being paid full salary during this time. However, he had not been assigned any customers to see along the way to Valdosta, and in fact did not see any. He was free to choose his mode of transportation, the route and time of travel in moving to the site of his selection.

Westinghouse moved for a summary judgment on the grounds that there was no genuine issue of fact that Ginn was not its servant at the time of the accident and there was therefore no vicarious liability under the doctrine of respondeat superior. The motion was denied and certified for appeal.

In considering the evidence on motion for summary judgment we are required to give the benefit of all reasonable doubts in determining whether a genuine issue exists to the party opposing the motion (plaintiff here). Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442. Summary judgment is appropriate when the evidence, so construed, shows that the plaintiff cannot recover from the defendant movant. Price v. Star Service & Petroleum Corp., 119 Ga.App. 171(2), 166 S.E.2d 593. The question of whether a servant by whose act another is injured was acting within the scope of his employment is ordinarily one to be determined by a jury; but if the facts are so clear that only one conclusion can reasonably be reached, the court may decide it as a matter of law and enter a summary judgment. Columbia Drug Co. v. Cook, 127 Ga.App. 490, 194 S.E.2d 286; Don Swann Sales v. Carswell, 124 Ga.App. 141, 183 S.E.2d 218; Corum v. Edwards-Warren Tire Co., 110 Ga.App. 33, 137 S.E.2d 738.

The test of scope of employment is not whether the negligent act occurred during the existence of employment but whether it was done while the employee was conducting a transaction in the course of and that was accomplishing the ends of his employment. Marketing Sales Industries of Georgia v. Roberts, 118 Ga.App. 718, 165 S.E.2d 319; Gomez v. Great Atlantic and Pacific Tea Co., 48 Ga.App. 398(3), 172 S.E. 750.

Georgia cases have generally held that '. . . ordinarily an employee who is on his way to work is not acting within the scope of his employment, as he has not yet commenced to...