1. It is well established under Georgia law that a presumption arises when a servant is operating his employer's vehicle at the time of a collision, he was in the scope of his employment. Ga. Power Co. v. Mozingo, 132 Ga. App. 666, 668 ( 209 S.E.2d 66); Dawson Motor Co. v. Petty, 53 Ga. App. 746, 749 ( 186 S.E. 877). The burden is then upon the master to rebut the presumption by evidence that is "clear, positive and uncontradicted" and that shows the servant was not in the scope of his employment.
A special rule applies to vehicular collisions: "When an automobile is in a collision and the operator is an employee of the owner, a presumption exists that the operator was in the scope of his employment and the burden is then on the employer to show to the contrary."Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 668, 209 S.E.2d 66, 69 (1974), citing Dawson Motor Co. v. Petty, 53 Ga. App. 746, 749, 186 S.E. 877 (1936). The inference "is overcome when there is uncontradicted positive evidence that the employee was . . on a purely personal mission.
Duffee v. Rader, 178 Ga. App. 517, 518 (1) ( 344 S.E.2d 258). See Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 668 (4) ( 209 S.E.2d 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.
"While Code ยง 81-1104 [now OCGA ยงยง 9-10-7 and 17-8-55] prohibits a trial judge from intimating or expressing any opinion as to what has or has not been proved, yet where, as [in the case sub judice], the evidence demands a finding as to the opinion expressed, there is no cause for reversal. Imperial Investment Co. v. Modernization Construction Co., 96 Ga. App. 385 (2) ( 100 S.E.2d 107); Goldstein v. Karr, 110 Ga. App. 806 ( 140 S.E.2d 40); Rauch v. Shanahan, 125 Ga. App. 782 ( 189 S.E.2d 111)." Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 668 (4), 669 ( 209 S.E.2d 66). Further, contrary to defendant's assertions that this instruction was confusing and misleading, we find nothing therein which prejudiced defendant's cause, thereby requiring a new trial.
"[W]here, as here, the evidence demands a finding as to the opinion expressed, there is no cause for reversal. [Cits.]" Ga. Power Co. v. Mozingo, 132 Ga. App. 666 (4) ( 209 S.E.2d 66) (1974). Judgment affirmed. Banke, P. J., and Carley, J., concur.
"While [OCGA ยง 9-10-7] prohibits a trial judge from intimating or expressing any opinion as to what has or has not been proved, yet where, as here, the evidence demands a finding as to the opinion expressed, there is no cause for reversal. [Cits.]" Ga. Power Co. v. Mozingo, 132 Ga. App. 666 (4) ( 209 S.E.2d 66) (1974). Judgment affirmed. Banke, C. J., and McMurray, P. J., concur.
The driver of the truck in that case took the truck home every evening so that it would be available for him to pick up lumber on his way to work each morning. In Ga. Power Co. v. Mozingo, 132 Ga. App. 666, 668 ( 209 S.E.2d 66) (1974), the employer's truck was equipped with a two-way radio and the employee was subject to the direction and control of his supervisors whenever they communicated with him even though he was on his way to lunch. In West Point Pepperell v. Knowles, supra, during a rest stop at his home from his duties as a truck driver, the employee went out in the truck to purchase fuel and took his wife for a ride in the truck.
[Cits.]'" Rauch v. Shanahan, 125 Ga. App. 782, 785 ( 189 S.E.2d 111); Ga. Power Co. v. Mozingo, 132 Ga. App. 666 (4) ( 209 S.E.2d 66). Both charges of the court contained facts obvious to the jury and merely explained what their duty was. They were not argumentative, confusing, inaccurate, misleading, or prejudicial.
(c) The court did not express an opinion when it stated, after charging the offense of selling narcotics, "Now, ladies and gentlemen, heroin is a narcotic." It was still for the jury to determine if the substance bought from Carter was heroin, and since the evidence was uncontradicted that it was in fact heroin there is no cause for reversal. Ga. Power Co. v. Monzingo, 132 Ga. App. 666 (4) ( 209 S.E.2d 66). (d) No request was made for the judge to charge that the verdict of the jury must be unanimous and no objection was made to the charge as given. Therefore this enumeration is without merit.