Opinion
39668.
DECIDED OCTOBER 3, 1962.
Action for damages. Fulton Superior Court. Before Judge Pye.
Huie, Etheridge Harland, Jack P. Etheridge, Harry L. Cashin, Jr., for plaintiff in error.
Ben Weinberg, Jr., contra.
The depositions and affidavit in support of the defendant's motion for summary judgment show without contradition that: (1) The authorized inference that the employee was on an authorized mission at the time of the plaintiff's injury, based on the fact that he was an employee of defendant and was driving its truck, was completely overcome by the undisputed facts that he was not on an authorized mission at the time, and that (2) The mission engaged in by the employee at the time of plaintiff's injury was wholly a personal one on the part of the employee and was not merely a resumption of employment duties after a slight deviation from his authorized route.
DECIDED OCTOBER 3, 1962.
Mrs. P. F. Brennan sued National NuGrape Company for damages for personal injuries alleged to have been proximately caused by the negligence of the employee of the company, Guy Smith, while operating a truck in the scope of his employment with the defendant. The defendant denied liability and moved for a summary judgment based on the affidavit of the sales manager of the defendant and the deposition of Guy Smith, the employee of the defendant who was operating the truck at the time it struck the plaintiff. The undisputed facts in the case, taken from the deposition and the affidavit aforesaid are as follows: Guy Smith operated for the defendant a leased truck in which he delivered soft drinks to customers in a specifically defined territory. When Smith's duties for the day terminated it was his duty to park the truck he was driving at a certain parking lot where it was serviced by the lessor to make it ready for the next day's operation. The parking lot was approximately one mile east of the employee's territory and route. The employee usually finished his day's work from 3 o'clock in the afternoon up to 10 o'clock at night. The employee had no authority to go outside his route or territory except in one specified instance, to wit, to help another truck driver serve a customer under certain circumstances which are not in issue in this case. The employee furnished his own uniform with the defendant's insignia thereon. The defendant's insignia was also on the truck driven by the employee. On the day of the injury to the plaintiff the employee completed his work at 3 o'clock in the afternoon and drove his truck to the parking lot where he usually parked it overnight. He was not permitted to go home in the truck but had to ride a bus. On this occasion when he carried the truck to the parking lot at about 3 o'clock in the afternoon he drove it up to a gasoline tank and as he alighted from the truck his trousers were ripped in the crotch. He got all the way out of the truck onto the ground and got back into the truck and drove the truck, without getting special permission to do so, to his home which was approximately five miles east of the parking lot where the truck was usually parked at night. He went home, talked to a friend who visited him, put on some fresh uniform trousers, drank two cans of beer and on his way back to the parking lot struck and injured the plaintiff. The question and answer record in the deposition as to the parking of the truck is exactly as follows: "Q. When you went back to Dixie U-Drive It did you park your truck, after you left your route? A. I never did get back. No, I didn't park. I pulled to the gas tank, split my trousers, got back in and went home. Q. Had you turned off the engine? A. Yes, sir. Q. Is that where you leave your car normally? A. I would leave my car there in the morning and pick up the truck. Q. I beg your pardon. I am referring to the truck. When you left your territory and went back to Dixie U-Drive It? A. I would leave it right there in the driveway by the gas tank, leave it right there. I didn't have anything else to do with it until the next morning." The court granted the defendant's motion for summary judgment and the plaintiff excepted.
The plaintiff contends that there is an issue of fact for a jury in this case for the reason that there was a presumption or authorized inference that the truck was being driven on the business of the defendant because the employee of the company was operating the vehicle at the time of the injury. This legal presumption or authorized inference is rebuttable and the facts of this case completely rebut the inference that the employee had authority to operate the truck at the time of the injury. The plaintiff also contends that the employee had simply deviated from his regular territory of operations and was returning to such territory and that under such theory the defendant was liable. This is not a case of a deviation of any kind from which the employee could be said to have been returning. The whole operation from the parking lot to his home and the part of the return trip to the point of injury was conduct unauthorized by the defendant. The fact that the employee had on clothes containing the insignia of the defendant and the fact that the truck contained the insignia of the defendant cut no figure whatsoever. When the employee drove the truck to the parking lot, stopped it, cut off the engine near the gasoline tank, got out of the truck and reached the ground, his employment for the day was completed. Tearing his trousers was not the proximate result of his employment. He furnished his own clothes and it was his duty alone to see that they were in good condition and their tearing could not be attributed to any fault of the defendant, and their tearing had no connection with his employment. The fact that the trousers tore while he was alighting from the truck is merely a coincidence. If the employee had accidentally torn his trousers while on the authorized route and had made a deviation by driving home to replace them, we might have a different case. As stated above, there was no deviation but a wholly unauthorized operation from beginning to end, from the time the employee left the parking lot after he had stopped the truck there up to the time that his truck struck the plaintiff on his way back from his home. The plaintiff in error contends that the employee's testimony in his deposition is equivocal on the question as to whether or not he had returned to the parking lot. Although he said that he did not get back and that he did not park, he stated that he pulled to the gas tank, where he ordinarily left his truck at night and got out on the ground. It does not make any difference whether he had parked the truck at the parking lot in a place where it would be left all night. He had arrived at the place where the truck was required to be parked all night and the fact that he had not parked it in any one spot would not give him authority to drive the truck home for the purely personal mission of changing his trousers. We think that this case is without question controlled by the rulings in Nicholas v. Callaway, 72 Ga. App. 41 ( 32 S.E.2d 836); Wilson v. Quick-Tire Service, 32 Ga. App. 310 ( 123 S.E. 733); Cooley v. Tate, 87 Ga. App. 1 ( 73 S.E.2d 72), and Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 ( 185 S.E. 147).
The court did not err in granting the defendant's motion for a summary judgment.
Judgment affirmed. Bell and Hall, JJ., concur.