Davis Gas Co. v. Powell , 140 Ga. App. 841 ( 1976 )

Stolz, Judge.

1. The central issue in this appeal is whether the acts of defendant-appellant’s employees were within the scope and course of their employment so as to impose liability on their employer for the consequences of those acts.

Whatley and Lamb were employees of Davis Gas Company on the date of the death of Patricia Powell Cox. They had been instructed by Hamp Davis, their boss, to go to Harold Ivey’s farm that afternoon to pick up wheels for a tobacco barn. They used the truck assigned to Cliff Whatley for this purpose. Both had trucks assigned to them which they used interchangeably. Each had the use of the truck assigned to him. They drove them home at night, and back to work in the mornings. The trucks were used on calls at all hours and could be used for personal reasons, although they weren’t "supposed” to. There were several routes to Harold Ivey’s farm and they had authority to use whichever they chose.

They were given no definite time to get to or get back from Ivey’s farm. They picked up sixteen-year-old defendant Henderson on the way there, bought gas and charged it to Davis Gas Co. and proceeded to the farm. When they picked up Henderson, they knew she had been drinking, and was acting funny or high. Defendant Henderson stated that Whatley stopped on the way, purchased beer and gave it to her to drink. She drank the beer with Lamb. Whatley drank no beer, stating "I’m working” and "I don’t drink while I’m working.” After she drank more beer, defendant Henderson started acting "really wild” and using vulgar and lewd language. She seemed sick, and both Whatley and Lamb got out of the truck, leaving it stopped in the lane of traffic, keys in the ignition, engine running, automatic transmission in park and without the emergency brake on. She was the only one left in the truck and was in control of it. At this time, they were a few miles from Ivey’s farm, and still had the intention of going there. The truck was headed in the direction of Norman Park or Cool Springs, depending on which testimony is believed. Their purpose in being out there when the girl took the truck, was still to go to Ivey’s farm. They considered themselves to be on the job. It was company business to go to Ivey’s farm. A short time later, while defendant Henderson was driving the truck in a drunken condition, it collided with the vehicle Patricia Powell Cox was driving. Patricia Powell Cox died as a result of the collision. Whatley and Lamb were paid a full day’s pay, and were still employed by the defendant company at the time of trial.

The jury returned a verdict for the plaintiff against all the defendants. Only Davis Gas Co. has appealed. On appeal the evidence is construed most strongly to support and sustain the verdict and judgment of the trial court. Worn v. Sea-Cold Services, Inc., 135 Ga. App. 256 (2, 3) (217 SE2d 425) and cits. As has been noted, there were several routes from Moultrie, Georgia, to Harold Ivey’s farm near Norman Park, Georgia. The route taken carried the two employees and Miss Henderson onto a county dirt road at its intersection with the Norman Park - Cool Springs highway. At this point, Miss Henderson said she was sick, arid asked to be taken home. She lived just down the road apiece. First dirt road on the left, first house on the right. The employee drove down the road "a little piece” when Miss Henderson fell over toward the dash. At this point, the truck was stopped and the events occurred which led to Miss Henderson’s taking the truck and the subsequent tragedy. Thus, the deviation is the "little piece” the employee drove down the Norman Park - Cool Springs highway prior to the truck’s being stopped.

"The extent of deviation by a servant from the usual route or method in performing service directed by the master may be so slight relatively that, as a matter of law, it can be said that it does not constitute a complete departure from the master’s service, and that the servant is still engaged in his master’s business, so as to render the latter liable for his negligence in driving. Under other circumstances, the deviation may be so great and unusual that it can be said as a matter of law that it does constitute an abandonment of the master’s service. However, in most cases, that is, cases falling between these extremes, the liability of the master for the negligence of the employee in the course of some deviation is a question of fact for the jury to decide. The deviation may be so uncertain in extent or degree that the inference must be drawn by the trial jury as to whether or not it has been such an abandonment as to relieve the master from responsibility for the servant’s action. Where the evidence shows that the employee was not taking the shortest or most direct route for the performance of the duties of his employment, or had stopped en route, whether the deviation was so substantial as to constitute a departure from the employment, or whether he was nevertheless acting within the scope of his employment, is generally a question of fact for the jury. Whether the place where the accident occurred was or was not a place at which the servant could havé been while he was engaged in the performance of the duties of his employment is a factor in determining whether submission to the jury was authorized. . . The mere fact that, at the time of an accident, the driver of an automobile intended to deviate from his regular route the distance of about thirteen blocks to take a woman to her home is not such evidence of a marked and unusual deviation as requires the court to hold as matter of law that the driver was not on his master’s business.” 6 Blashfield, Automobile Law and Practice (3rd Ed.) 245, § 253.78. See Perry v. Haritos, 100 Conn. 476 (124 A 44).

"It is, of course, the general rule that 'if a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected with it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not.' Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga. App. 451 (167 SE 776), and cit.; Henderson v. Nolting First Mortgage Corporation, 184 Ga. 724, 733 (193 SE 347, 114 ALR 1022). However, if a servant or employee, while engaged in the business of his master, makes a slight deviation for ends of his own, the master remains liable when the act is so closely connected with the master’s affairs that, though the servant may derive some benefit from it, it may nevertheless fairly be regarded as within the scope of his employment. Limerick v. Roberts, 32 Ga. App. 755 (124 SE 806); Jump v. Anderson, 58 Ga. App. 126 (197 SE 644). Where there is a deviation the question should ordinarily be submitted to the jury as to whether or not the deviation from the master’s business was slight, so slight as not to affect the master’s responsibility for the negligent act.” Parker v. Smith, 66 Ga. App. 567, 569 (18 SE2d 559).

The transcript of the evidence shows the extensive use of maps and diagrams showing exactly where all events occurred. In Parker, supra, this court, applying the foregoing principles, affirmed the resolution of a deviation from employment by the jury in favor of the plaintiff.

In Pratt v. Melton, 107 Ga. App. 127 (129 SE2d 346), the sole issue to be resolved was one of deviation from employment. In the opinion, our court stated the following facts: "In the factual situation before us in this case, there are numerous routes one can take to proceed in a motor vehicle from the defendant’s place of business to Carter’s Mannequin Studio where the car was to be delivered with the driver instructed to go directly to it. One of the more direct routes would be to go south on Courtland Street to its intersection with Edgewood Avenue, right (or west) on Edgewood to its intersection with Marietta, then on Marietta to Broad, and left on Broad to No. 178. The place where the collision took place was approximately four-tenths of a mile from the intersection of Courtland and Edgewood but east of the intersection, while the destination of the driver, to carry out the business with which his employer had charged him, would have been to go west from this intersection. Under the undisputed testimony, the motor vehicle was not only traveling in the wrong direction at some distance from the direct route but also was traveling away from the intended destination at a high rate of speed. . . [T]here is no explanation in the record as to the objective the driver had in mind at the time of the collision.” Pratt, supra, p. 130. In reversing the direction of a verdict for the defendant, our court stated: "[I]f it is shown that the driver operating the master’s vehicle was in the master’s employment at the time of the injury, the presumption arises that the driver was engaged in the master’s business and within the scope of his employment, and the burden is then placed upon the master to show that the person operating the machine was not his servant or was not at the time of the injury engaged in the business of the master. Dawson Motor Co. v. Petty, 53 Ga. App. 746, 749 (186 SE 877) and authorities there cited. The defendant contends that the present case is distinguishable from the other cases in which the departure from employment was held to be a jury question since the evidence here shows that the driver fled from the scene of the accident and has not since been heard from. The defendant urges that this is a circumstance which the jury could consider favorable to the defendant. While concurring that the jury could consider this circumstance favorable to the defendant, the jury would not be bound to do so nor would the fact demand a verdict in favor of the defendant.” Pratt, supra, 132.

In Ayers v. Barney A. Smith Motors, 112 Ga. App. 581 (145 SE2d 753), the defendant employer (automobile dealer) provided the defendant salesman with a demonstrator automobile. The litigation arose out of a fatal collision involving the defendant salesman’s operation of the demonstrator automobile while en route from Macon, Georgia, to Simpsonville, S. C., for a social visit. The trial court’s grant of a summary judgment for the defendant was reversed on appeal. The following is an excerpt from this court’s opinion: "The fact that this defendant owned the automobile involved in the fatal occurrence and that its employee was driving the vehicle at the time, was sufficient to raise a presumption that the employee was operating the defendant’s automobile within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (1) (186 SE 877); Hall v. Cassell, 79 Ga. App. 7 (52 SE2d 639); Hix-Green Co. v. Dowis, 79 Ga. App. 412 (2) (53 SE2d 601 ); Fielder v. Davison, 139 Ga. 509 (77 SE 618). This presumption is a rebuttable one, but 'in order to overcome it as a matter of law the evidence of the defendant should be clear, positive, and uncontradicted that the servant was not at the time in the prosecution of his master’s business or acting within the scope of his employment ’ Abelman v. Ormond, 53 Ga. App. 753, 761 (187 SE 393). 'Where there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment the presumption is not overcome as a matter of law even though the master and servant positively testify that what he was doing was without the scope of his employment. The issue is generally one for the jury.’F. E. Fortenberry & Sons, Inc. v. Malmberg, 97 Ga. App. 162, 166 (102 SE2d 667).”

In Veal v. Paulk, 121 Ga. App. 575, 578 (6) (174 SE2d 465), "the evidence showed the collision occurred while the defendant’s agent was driving the car while under the direction of the master in that he was sent from Fitzgerald to Albany to pick up another employee and to return, and the presumption arises that the driver was engaged in the master’s business and within the scope of his employment. The burden was then placed upon the master to show that the person operating the vehicle engaged was not his servant and was not at the time of the injury in his business. While the defendant’s evidence shows that the master gave the servant instructions as to how to travel to Albany and return and that the vehicle collided with another not on this route, yet this evidence is insufficient to demand a finding that he was not acting within the scope of his employment in going to Albany to pick up the employee. It became a jury question as to whether the presumption created had been overcome. See Dawson Motor Co. v. Petty, 53 Ga. App. 746, 749 (186 SE 877); F. E. Fortenberry & Sons v. Malmberg, 97 Ga. App. 162 (102 SE2d 667); Pratt v. Melton, 107 Ga. App. 127, 132 (129 SE2d 346); Ayers v. Barney A. Smith Motors, 112 Ga. App. 581 (145 SE2d 753).”

In the case before us, the transcript of the evidence shows the extensive use of maps and diagrams showing the route taken and the extent of the deviation. The jury had the issue of deviation before it for resolution. Although they would have been authorized to find for the defendant, the evidence did not require them to do so and this court will not disturb the jury’s resolution of this factual issue on appeal.

Argued September 20, 1976 Decided November 30, 1976 Rehearing denied December 17, 1976 Owens & Hilyer, Seymour S. Owens, for appellant. Reinhardt, Whitley & Sims, Ralph F. Simpson, Willie E. Lockett, Jr., for appellees.

2. The remaining enumerations of error are without merit.

Judgment affirmed. Bell, C. J., Been, P. J., Quillian, P. J., McMurray and Smith, JJ., concur.

Clark, Webb and Marshall, JJ., dissent.