concurring in part and dissenting in part.
Because I believe that plaintiff Wright failed to show a material issue of fact with regard to whether Cardwell was on company business or a personal mission at the time of the accident, I respectfully dissent. Also, I do not agree with the rationale put forward by the majority regarding analysis of the relationship between an owner/lessor and a trucking company/lessee engaged in intrastate or interstate commerce.
1. The issue of responsibility for the actions of a driver who is not the owner of the vehicle but is using it in the course of his employment when an accident occurs can be seen as a continuum. At its basic level, there is the common law master-servant analysis under the doctrine of “respondeat superior,” in which the inquiry is whether the servant (employee) was at the time of the injury acting within the scope of his employment and on the business of the master (employer). Braddy v. Collins Plumbing &c., 204 Ga. App. 862, 864 (420 SE2d 806) (1992); Viau v. Fred Dean, Inc., 203 Ga. App. 801, 802 (2) (418 SE2d 604) (1992).
When the issue of intrastate or interstate commerce and federal and state regulation thereof are added to the mix, the inquiry becomes somewhat more complicated. This is in part attributable to the common business practice of trucking companies which lease tractors from owner/drivers who then drive for the company, as here with Transus and Cardwell, or hire other drivers to drive for them. See Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (360 SE2d 280) (1987).
Under OCGA Title 46, Chapter 7, motor contract carriers and motor common carriers are required to either post a bond or provide a policy of insurance “ ‘for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents.’ OCGA §§ 46-7-12 (a) (c); 46-7-58 (a) (c).” Ellerbee, supra at 828 (1).
Likewise, the Interstate Commerce Commission regulations provide that the carrier’s lease must require it 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.’ ” Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706, 710 (1) (371 SE2d 252) (1988).
As stated in Simmons v. King, 478 F2d 857 (5th Cir. 1973), and *775adopted by this court in Nationwide, supra, “ ‘the ICC carrier’s liability for equipment and drivers covered by leasing arrangements is not governed by the traditional common law doctrine of master-servant relationships and respondeat superior.’ [Simmons] at 867. The Simmons court [held] that under the statutorily mandated terms of the lease, the carrier lessee had ‘assumed exclusive possession, control, and use of the vehicle and responsibility to the public, (the driver) became his statutory employee, and as such (the carrier) was vicariously liable as a matter of law for the negligence of (the driver).’ ” Nationwide, supra at 712 (3). This theory obviates the need for the injured person to factually prove that, despite the use of “lessor-lessee” language which generally gives rise to independent contractor status, the legal relationship of the owner/driver and the trucking company for purposes of compensating the injured person is that of employer-employee.
The injured person must, however, even in this context, show that the accident happened while the driver was “on business of the master [trucking company].” Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983).1
2. In the present case, Transus, defendant below, moved for summary judgment on this issue, putting forth the affidavit of Cardwell, the owner/driver, that he was on a personal mission of his own, unconnected with Transus, when the accident occurred. He swore that he had checked his load in at the Transus terminal, dropped the trailer with the load there, gone to have his tractor serviced, and then to have lunch, which is when the accident occurred. He was solely responsible for the maintenance of the tractor and was also required to maintain insurance (here provided by American International) for periods when he was “bobtailing.”2 Also submitted was the affidavit of the Transus dispatcher that Cardwell had checked out at Transus and was not under the company’s control until later dispatched with another load, hours after the accident.
“In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [cit.].” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).
“Once the moving party for summary judgment has carried its *?burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); [cit.].” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987).
Here, Wright submitted no affidavits or depositions to support his contention that Wright was in the service of Transus at the time of the accident.3
Therefore, I must conclude that the grant of summary judgment to Transus and its insurer, Protective Insurance Company, was proper. Coffee Chrysler-&c. v. Nasworthy, 198 Ga. App. 757, 758 (403 SE2d 453) (1991); Wittig v. Spa Lady, 182 Ga. App. 689, 690 (356 SE2d 665) (1987); see Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119, 120 (1) (421 SE2d 284) (1992). Compare U. S. Fidelity &c. v. Skinner, 188 Ga. 823 (5 SE2d 9) (1939) with Edwards v. State of Ga., 173 Ga. App. 87 (325 SE2d 437) (1984).
3. The issue of Cardwell and his “bobtail” insurer, American International, however, is still before the court below since the conclusion that he was not on company business at the time of the wreck leaves the issue of his personal liability for determination.
I am authorized to state that Presiding Judge Beasley and Judge Smith join in this opinion.
On Motion for Reconsideration.
Appellees now contend that a footnote in the dissent has alerted them to the alleged fact that the complete record considered by the trial court was not sent up. Appellees have waived any such complaint under Court of Appeals Rule 47. Appellees contend that we should make an exception to this rule because “through the exercise of self help, the appellees have tried to stay abreast of this matter and have tried to comply with this Court’s rules, unlike the appellant who appears to have ignored them.” This assertion begs the rule and creates no exception to it.
Further, the great quantity and variety of factual matters which appellees argue entitled them to judgment as a matter of law merely prove that issues of fact remain for the jury, construing the evidence in favor of appellants as respondents to the motion for summary judgment. That the case cannot be decided as a matter of law is evi*777denced by the differences of opinion of the members of this court.
Decided July 16, 1993 — Reconsideration denied July 30, 1993 — Floyd Mincey, Stephanie D. Blair, for appellant. Vernon Wright, pro se. Watson, Spence, Lowe & Chambless, Thomas S. Chambless, for appellees.Motion for reconsideration denied.
Prior to federal and state regulation of interstate and intrastate commerce, the common law rules of bailment controlled these issues. OCGA § 44-12-60 et seq.; see Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 878 (1) (311 SE2d 193) (1983).
Driving the tractor without a trailer attached to it.
While the record here contains an order incorporating the record of another suit between these parties which had been dismissed and later the present suit filed, none of that earlier record was presented here by appellant Wright and he has not fulfilled his burden to show conflicts in the record presented to this court. Wiggley v. State, 204 Ga. App. 583, 584 (2) (420 SE2d 82) (1992), citing Williams v. Lemon, 194 Ga. App. 249, 252 (3) (390 SE2d 89) (1990).