This is an appeal from the grant of summary judgments in this personal injury suit in favor of Transus, Inc., American International Insurance Company (American Insurance), and Protective Insurance Company (Protective Insurance).
Plaintiff Vernon Wright alleged his vehicle was struck in the parking lot of a Hardee’s restaurant by a tractor-trailer rig operated by Cardwell, acting in the employment of Transus, Inc. and rendering Transus liable as respondeat superior. The insurers were sued under OCGA § 46-7-12 (e) of the Public Utilities & Transportation Act, as to joinder of insurers of a motor common carrier. The summary judgments included a finding that American Insurance and Protective Insurance were not proper parties and suit against them was dismissed. Held:
1. Transus convinced the trial court that Cardwell was not a Transus employee but operated his tractor-trailer rig as an independent contractor under a lease with Transus, and he was not under the control or direction of Transus or performing any service for Transus at the time of the accident, at about 4:00 p.m. on July 20, 1987. On the day of the collision at 4:30 a.m., Cardwell signed in on the “In and Out Terminal Register” at the Transus terminal in Albany and dropped a loaded trailer at the terminal. Cardwell then went to the sleeping quarters provided by Transus for drivers. He slept about eight hours. Cardwell was considered by Transus to be off-duty until he was dispatched again with a trailer load. On this day, Cardwell was not dispatched again by Transus until 8:45 p.m. After waking at the Transus sleeping quarters, Cardwell took the tractor for servicing at Carlton Caterpillar. Then he drove the rig to Hardee’s to get a sandwich, in anticipation of going back to the Transus terminal to wait for another dispatched load.
Cardwell was not compensated for mileage incurred by his trailer unless he was under dispatch for Transus at the time, and Cardwell, not Transus, was billed for the servicing to the rig by Carlton Caterpillar. Transus contends that the lease agreement establishes a relationship of carrier/independent contractor and not employer/employee; that neither was agent of the other; that Transus had no authority to control operation and maintenance of the rig except as required by law to accomplish the purposes of the lease agreement; *772that Cardwell furnished all labor and supplies to operate the rig, and performed all services necessary in the transportation of such commodities as Transus may direct. Transus contends the lease required Cardwell to keep the rig in safe condition and to bear the expense of all fuel, parts, service, fees and taxes, and to maintain “bobtail” liability insurance. He purchased his own diesel fuel, truck license and the PSC plate which authorizes Transus to operate in Georgia. Card-well did not drive for anyone other than Transus, but Transus alleges that Cardwell stated he would have driven for someone else if he had the time.
Appellees contend no issue of material fact remains that Cardwell was an independent contractor and sole owner/operator of the tractor-rig, and that he was on a purely personal mission and had not been dispatched or given an assignment by Transus at the time of this collision and therefore was not engaged in the furtherance of the business of Transus.
The material issues in this case are similar in principle to those of Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706 (371 SE2d 252). As in Nationwide, the motor common carrier was leased to the common carrier, and was operated by the owner/lessor. The surface issue in Nationwide of insurance coverage was decided on the underlying principle that under ICC requirements for operation and continued certification of the carrier’s business, the carrier’s lease was required to have “ ‘exclusive possession, control and use of the equipment for the duration of the lease’ and to ‘assume complete responsibility for the operation of the equipment for the duration of the lease.’ ” Id. at 710. Even though the driver (an employee of the owner/lessor) had finished his assignment for the day and had driven the carrier home, he did so with the carrier/lessee’s knowledge and permission as part of his work routine. As said in Nationwide, in view of ICC regulations Transus can hardly contend that it was none of its business where Cardwell took the truck or what he did with it when he was not using it strictly in the performance of Transus’ business, as Transus was by law required to exercise control.
The facts in this case are even more persuasive of this inference than those in Nationwide. Under ICC regulations this motor carrier was under the control of Transus. Transus’ business required it to maintain a terminal in Albany and sleeping quarters for the drivers of the vehicles engaged in the operation of its business. Cardwell was in Albany to deliver a load at the Transus terminal and to pick up another when he was dispatched; to facilitate the regular operation of this pattern, Cardwell drove the carrier to the sleeping quarters provided by Transus. He was, in effect, on call for the next dispatch; certainly this, at least, is a material issue of fact.
If Cardwell was to eat a meal in Albany, he had either to walk, *773hire a taxi, rent a car, or drive the tractor-rig to the restaurant. The evidence shows beyond any material issue of fact that it was intended that the driver (who in this case was also the owner/lessor of the vehicle) would use the vehicle in the time between delivering a load to the Transus terminal and setting out on another dispatch, and would do so in anticipation of being called at any time for another dispatch. He remained in Albany because he was awaiting his next dispatch, and in fact he was dispatched again later that day after this collision. It cannot be said that Cardwell’s interlude at the restaurant was “purely personal” as a matter of law, as it was part of Transus’ operational routine while he was in Albany awaiting Transus’ next dispatch. Unless he intended to abandon his duties of employment, he could not leave Albany and was required to conduct his personal business, including driving to a restaurant to eat, by using the vehicle. At least, there are issues of fact as to these matters.
We are not advised of any restriction placed by Transus on a driver’s use of its leased common carrier to go to a restaurant while awaiting his next dispatch, or that he violated any rule by doing so. Contrary to the inferences Transus would have us draw, the reasonable inference is that everything Cardwell did while in Albany was in pursuit of Transus’ business, as he was there solely to await the next dispatch, whenever that might occur at Transus’ discretion. When Cardwell went to sleep, he slept at Transus’ premises; when he awoke, he took the vehicle to be serviced, in pursuit of the operation of Transus’ business, and although Cardwell was in the restaurant parking lot to eat lunch, he was awaiting his next dispatch, and he was therefore “ ‘at that time engaged in serving his master.’ ” West Point Pepperell v. Knowles, 132 Ga. App. 253, 256 (208 SE2d 17).
Certainly the lease of a vehicle by the carrier, as opposed to its ownership, does not control the question whether the driver was engaged in the carrier’s business, under the evidence in this case.
Viewing all the evidence most indulgently in favor of the respondent on appellees’ motions for summary judgment, construing the evidence most strongly against them as movants, and giving the party opposing the motion the benefit of all inferences fairly and reasonably drawn in support of his case (see generally Brandywine Townhouses v. Morrison, 200 Ga. App. 425 (408 SE2d 422)), we find the trial court erred in granting summary judgment to appellees on the issue of respondeat superior liability. This is an issue for the jury.
2. It follows that the trial court erred in granting judgment to the insurers of motor common carriers, dismissing them from the suit; plaintiff was entitled to bring a direct action against them under OCGA § 46-7-12 (e). Any issue as to constitutionality of the statute is in the exclusive jurisdiction of the Supreme Court on appeal (Kolker v. State, 193 Ga. App. 306 (387 SE2d 597)), and in any case, is not *774properly raised on appeal where the trial court did not expressly consider and rule upon it.
Judgment reversed.
Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., concur. Beasley, P. J., Andrews and Smith, JJ., concur in part and dissent in part. Johnson, J., not participating.