Reese v. Georgia Power Co.

McMurray, Presiding Judge,

dissenting.

Although I agree with the first two divisions of the majority opinion, I must respectfully dissent as to Division 3 as I find a genuine *134issue of material fact remains as to whether Standley was acting within the scope of his employment at the time of the collision.

“ ‘A presumption arises when an employee is operating his employer’s automobile at the time of a collision, that he was acting within the scope of his employment. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979); Johnstown Fin. Corp. v. Roper, 170 Ga. App. 575 (317 SE2d 634) (1984); Massey v. Henderson, 138 Ga. App. 565 (226 SE2d 750) (1976). On a defendant’s motion for summary judgment, however, “(w)hen the uncontradicted 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. If this ‘other fact’ is direct evidence, that is sufficient for the case to go to a jury. However, when the ‘other fact’ is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendant’s motion for summary judgment.” Allen Kane’s Major Dodge v. Barnes, supra at 780. Circumstantial evidence which is consistent with the defendant’s evidence used to rebut the presumption will not support a verdict. Id. at 781.’ Fred A. York, Inc. v. Moss, 176 Ga. App. 350, 351 (335 SE2d 618).” Trollinger v. Bob & Carolyn Ford, 180 Ga. App. 252 (1) (349 SE2d 11).

In the case sub judice, Georgia Power contends that there was no other fact, either circumstantial or direct, to indicate that Standley was acting within the scope of his employment at the time of the collision. Georgia Power relies primarily on portions of Standley’s affidavit and the affidavit of Standley’s foreman, wherein it is deposed that Standley was then operating Georgia Power’s service vehicle without authority and while on a purely personal mission. Other relevant evidence in Standley’s affidavit is not considered.

“All ambiguities and conclusions on consideration of summary judgment must be construed most favorably toward the respondent and against the movant. J. C. Penney Cas. Ins. Co. v. Williams, 149 Ga. App. 258, 261 (2) (253 SE2d 878).” North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346). Summers v. Milcon Corp., 134 Ga. App. 182, 183 (4) (213 SE2d 515). In the case sub judice, although Standley concluded that he had no authority to use a company vehicle during his lunch hour, he also deposed that he was a “mechanic crew leader” for Georgia Power; that he was furnished a company service vehicle to drive to and from work and that the purpose of his having a company vehicle available to him was so that he would be available to his employer “in case of an emergency. . . .” Construing this evidence in a light most favorable to Reese, it is a reasonable *135conclusion that Standley’s access to Georgia Power service vehicles was an integral part of his job; that it was for his personal benefit as well as for the benefit and convenience of Georgia Power and that Standley was therefore acting within the scope of his employment at the time of the collision. Duffee v. Rader, 178 Ga. App. 517, 518 (1) (344 SE2d 258). See Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 668 (4) (209 SE2d 66). Consequently, it is my view that the trial court erred in granting summary judgment to Georgia Power as a genuine issue of material fact remains for determination by a jury as to whether Standley was acting within the scope of his employment at the time of the collision. See Allen Kane’s Major Dodge v. Barnes, supra at 783.

Decided March 17, 1989 Rehearing denied March 29, 1989 John S. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant. Burt & Burt, Hilliard P. Burt, Terry J. Marlowe, for appellees. I am authorized to state that Chief Judge Carley joins in this dissent.