Chappell v. Junior Achievement of Greater Atlanta, Inc.

Banke, Judge,

dissenting.

This appeal is from the grant of summary judgment for defendant, Junior Achievement of Greater Atlanta, Inc., in a personal injury action arising out of an automobile collision. The sole question presented is whether, upon the uncontroverted facts, appellee could be subject to liability under the doctrine of respondeat superior. The uncontroverted facts are that appellee owned the automobile in question and had provided it to Gerald Scott, a vice president of Junior Achievement, for his business use, as well as for his personal use as a fringe benefit of employment. The accident occurred on a Saturday afternoon as Mr. Scott was returning home. Earlier that morning, he had attended a Junior Achievement function held at Georgia Tech. Mr. Scott had stopped at a shopping center to make some purchases but was again headed home when the collision occurred.

“1. (a) When it appears that a vehicle was, at the time in question, being operated by an employee of its owner, an inference arises that it was being operated by the employee within the scope of his duty and employment, (b) When there is positive, uncontradicted testimony that the employee was not at the time on any mission in behalf of his employer or in the course of his employment, but that he was on a purely personal mission, the inference is overcome, (c) When *45a servant is permitted by the master to use a vehicle for the servant’s own pleasure or business, wholly disconnected from that of the master, and a third party is injured by the servant’s negligent operation of it while on his own mission, the master cannot be held liable under the doctrine of respondeat superior.” Price v. Star Svc. &c. Corp., 119 Ga. App. 171 (1) (166 SE2d 593) (1969). “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 liable for an injury occasioned while the servant is en route to or from his work.” Stenger v. Mitchell, 70 Ga. App. 563, 566 (28 SE2d 885) (1944); accord, Chattanooga Pub. Co. v. Fulton, 215 Ga. 880 (114 SE2d 138) (1960); McKinney v. T.I.M.E.-D.C., Inc., 134 Ga. App. 57 (213 SE2d 166) (1975).

It is undisputed that the Junior Achievement function had ended and that Mr. Scott was on his way home when the accident occurred. He was, as a matter of uncontroverted fact, on his way home from a personal errand when the accident occurred. To defeat a motion for summary judgment “[w]hen the uncontroverted testimony of the defendant and/or the employee shows that the employee was not acting within the scope of his employment at the time of the accident, the plaintiff must show, in addition to the facts which give rise to the presumption that he was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment.” Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979). No such other fact appearing, the trial court’s order granting summary judgment was proper. Accord, Fambro v. Sparks, 86 Ga. App. 726 (3) (72 SE2d 473) (1952); Stenger v. Mitchell, supra.

I respectfully dissent.