DECIDED MAY 30, 1979. Certiorari to the Court of Appeals of Georgia — 148 Ga. App. 332 ( 250 S.E.2d 876) (1978). Fain Gorby, Nicholas C. Moraitakis, for appellant.
The insurer defendant Universal Underwriters Insurance Company is arguably an agent of defendant Ed Sherwood Chevrolet, Inc. for the purpose of performing driver's license checks on new employees. Plaintiff relies upon language in Barnes v. Allen Kane's Major Dodge, Inc., 148 Ga. App. 332, 334 ( 250 S.E.2d 876), (reversed in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 777 ( 257 S.E.2d 186), as to the respondeat superior theory, but not as to negligent entrustment theory), to the effect that it might be inferred that an inquiry into an employee's driving record would infer that the matters contained within that driving record would be discovered. Thus, even though there is direct evidence that the inquiries into defendant Wills' driving record did not produce any results prior to the time of the crash due to the problems arising from defendant Wills' failure to provide accurate information as to his driver's license number in Tennessee, all of these facts and circumstances are inconsistent with the denial of any knowledge by defendant Ed Sherwood Chevrolet, Inc., through its various and sundry agents (employees, officers and insurer) as to defendant Wills' difficulties as a driver, and the trial court did not err in denying partial summary judgment to defendant Ed
Thus construed, we hold that the evidence was sufficient for the jury to find that Childre Chevrolet entrusted the vehicle to Thomason with actual knowledge of his incompetence or habitual recklessness. Cf. Harris v. Smith, 119 Ga. App. 306, supra; Thompson v. Bolton Chevrolet Co., 125 Ga. App. 369 ( 187 S.E.2d 574) (1972); Barnes v. Allen Kane's Major Dodge, 148 Ga. App. 332, 334 ( 250 S.E.2d 876) (1978), revd. on other grounds 243 Ga. 776 (1979). Compare Pugmire Lincoln-Mercury, Inc. v. Sorrells, 142 Ga. App. 444, supra; Marques v. Ross, 105 Ga. App. 133, 138 ( 123 S.E.2d 412) (1961).
This direct appeal was brought from that order under the provisions of Code Ann. § 6-701. The facts of this case are more fully stated in Allen Kane's Major Dodge v. Barnes, 243 Ga. 776 ( 257 S.E.2d 186) (1979), revg. Barnes v. Allen Kane's Major Dodge, 148 Ga. App. 332 ( 250 S.E.2d 876) (1978). 1. "The grant or denial of a stay under the Soldiers and Sailors Civil Relief Act, supra, is a final judgment on the collateral matter of stay and is appealable."
In reversing the trial court's grant of the employer's motion for summary judgment, this court found the fact that Underhill had unrestricted authority to solicit prospective purchasers was an "additional circumstance" sustaining the presumption of the master-servant relationship. See Barnes v. Allen Kane's Major Dodge, 148 Ga. App. 332 ( 250 S.E.2d 876) (1978). However, the Supreme Court disagreed, stating: "... `the unrestricted authority to solicit prospective purchasers' is circumstantial evidence and further it is not inconsistent with Underhill's testimony showing that despite this fact, at the time of the accident in question, he was not acting within the scope of his employment.
( Yoder v. State, 18 Okl. Crim. 637, 197 Pac. 848, expressly overruling Chappell v. State, 6 Okl. Crim. 398, 119 P. 139.) The following authorities support the above conclusion: People v. Lakenan, 61 Cal.App. 368, 214 P. 1021; Winsley v. State, 69 Fla. 391, 68 So. 376; State v. Poe, 69 W. Va. 260, 71 S.E. 177; State v. Barrick, 60 W. Va. 576, 55 S.E. 652; Rawlins v. State, 128 Ga. 96, 54 S.E. 924; State v. Hughes, 78 Mont. 87, 252 P. 320; State v. Birzer, 126 Kan. 414, 268 Pac. 842; 33 A.L.R. 550; 74 A.L.R. 757; State v. Wheat, 166 Minn. 300, 207 N.W. 623; Braswell v. State, 170 Ark. 1192, 280 S.W. 367; Dillard v. State, 174 Ark. 1179, 298 S.W. 27; Blass v. People, 79 Colo. 555, 247 P. 177; Smith v. State, 148 Ga. App. 332, 96 S.E. 632; Norwood v. State, 28 Ga. App. 238, 111 S.E. 59; Story v. State, 28 Ga. App. 109, 110 S.E. 326; Delong v. Commonwealth, 198 Ky. 316, 248 S.W. 839; State v. Dodge, supra; State v. Pittman, 137 S.C. 75, 134 S.E. 514; Nusser v. State, 195 Wis. 375, 218 N.W. 185; Wohlfert v. State, 196 Wis. 111, 219 N.W. 272; People v. Van Den Dreissche, 233 Mich. 38, 206 N.W. 339; State v. Phillips, 109 W. Va. 94, 153 S.E. 111; Thompson v. State, 115 Tex.Crim. Rep. 530, 28 S.W.2d 153. It is interesting to note how consistently Georgia has adhered to this rule.
On certiorari to the Supreme Court, Division I — Respondeat Superior — of this case was reversed. Therefore, Division I as published in Barnes v. Allen Kane's Major Dodge, Inc., 148 Ga. App. 332 (1978), is vacated and the opinion of the Supreme Court in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776 (1979), is adopted as the decision of this court. Judgment reversed in Case No. 56604; affirmed in Case No. 56605. Deen, P. J., and Banke, J., concur.