Healthdyne, Inc. v. Odom , 173 Ga. App. 184 ( 1984 )

Sognier, Judge.

William and Martha Odom brought these actions against Kenneth Lee Bucher and Bucher’s employer, Healthdyne, Inc. (Health-dyne), for personal injuries resulting from a collision between their car and a car driven by Bucher. The Odoms alleged that Bucher was negligently driving while under the influence of alcohol. The Odoms based their claims for relief against Healthdyne upon a theory of respondeat superior. Healthdyne appeals from the trial court’s denial of its motions for summary judgment.

Appellant contends that the trial court erred by denying its motions for summary judgment because the evidence established that Bucher was not acting within the scope of his employment and on his employer’s business at the time he collided with appellees.

1. “The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.]” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979). Bucher was employed by appellant as a purchasing agent. The collision occurred at approximately 9:00 p.m. after Bucher left a meeting at a restaurant with a co-worker and a prospective vendor. As proof that Bucher was within the scope of his employment and on appellant’s business, appellees rely on the fact that appellant required Bucher to entertain prospective vendors after normal working hours on a regular basis and that it was during the business meeting that Bucher consumed approximately four mixed drinks which appellees allege were the source of Bucher’s inebriated driving. Appellees also place significance on the fact that subsequent to the meeting, appellant entered into business transactions with the employer of the prospective vendor, perhaps arising out of discussions which took place at that meeting. The evidence was uncontroverted that at the time of the collision Bucher was on his way home.

“ ‘ “As a general rule, a servant in going to and from his work in an automobile acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held to be liable for an injury occasioned while the servant is en route to or from his work. [Cits.]” ’ ” Elam v. Ins. Co. of North America, 134 Ga. App. 169 (213 SE2d 546) (1975). The cases appellees rely on are all distinguishable from the instant case in that the employees in question were traveling to call on business prospects or for other business purposes on behalf of their employers. Appellees have failed to produce any evidence that Bucher was acting in furtherance of his employer’s business at the time of the collision. Even in cases involving on-call employees driving company cars, such employees are not within the scope of their employment when involved in collisions while on purely personal missions. Evans v. Dixie Fasteners, Inc., 162 Ga. App. 74 (290 SE2d 172) (1982). There being no genuine issue of fact as to whether Bucher was acting within the scope of his employment or on the business of his employer at the time of the collision, the trial court erred by denying appellant’s motion for summary judgment. See generally Evans v. Dixie Fasteners, Inc., supra; Elam v. Ins. Co. of North America, supra; Allen Kane’s Major Dodge v. Barnes, supra; Short v. Miller, 166 Ga. App. 265 (304 SE2d 434) (1983).

Decided December 5, 1984 Rehearing denied December 20, 1984 Donald D. Smith, for appellant. Roger M. Johnson, Thomas F. Allgood, Jr., N. Jackson Harris, for appellees.

2. Appellees argue that a fact issue exists as to whether appellant ratified the conduct of Bucher in becoming inebriated. An act cannot be subject to ratification unless done for and on behalf of the person adopting it and attempting to ratify it. Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 781 (300 SE2d 180) (1983). Appellant’s approval and sanctioning of Bucher’s entertainment of prospective vendors does not constitute evidence that Bucher was in appellant’s service when he drove home in an allegedly inebriated state. Even construing the evidence most strongly in favor of appellee as the party opposing the motions for summary judgment, Hanover Ins. Co. v. Nelson Conveyor &c. Co., 159 Ga. App. 13, 14 (282 SE2d 670) (1981), we find no genuine questions of material fact remain and therefore the trial court erred by denying appellant’s motion for summary judgment.

Judgment reversed.

Banke, P. J., Birdsong, P. J., Carley and Benham, JJ., concur. McMurray, C. J., Deen, P. J., Pope and Beasley, JJ., dissent.