Reese v. Georgia Power Co. , 191 Ga. App. 125 ( 1989 )

Per curiam.

Plaintiff Reese seeks review of the summary judgment granted to defendant Georgia Power Company (“Georgia Power”) in the personal injury action he filed against it and its employee, defendant Standley. Reese also challenges the trial court’s denial of his motion to disqualify as counsel the law firm representing both Georgia Power and Standley.

While driving a Georgia Power vehicle, Standley collided with Reese, who was riding his motorcycle. Reese suffered personal injury and property damage in the accident, and sued Standley and Georgia Power under the theory of respondeat superior. Both defendants, represented by the same law firm, filed answers denying negligence and liability, with Georgia Power denying that Standley was acting in the scope of his employment. Georgia Power moved for summary judgment and filed supporting affidavits, including one from Standley in which he deposed that he took it upon himself to use his employer’s truck to pick up family members on his lunch hour and take them to lunch, and that he did not have authority to use a company truck in such a manner. Reese then moved to disqualify defendants’ counsel, asserting that a conflict of interest existed between Georgia Power and Standley. The trial court denied the disqualification motion and granted summary judgment to Georgia Power and Reese now appeals. Held:

1. Georgia Power has filed a motion to dismiss Reese’s first enumeration of error, wherein Reese raises the disqualification issue. Georgia Power argues that the appeal from the order denying Reese’s motion to disqualify defendants’ counsel was an untimely interlocutory appeal.

Although Reese did not seek an interlocutory appeal from the denial of his motion to disqualify counsel, he properly placed the issue before this court by raising it in his appeal of the grant of summary judgment. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal, and where such appeal is taken, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability or finality of such judgments, rulings, or orders standing alone. OCGA § 5-6-34 (c); OCGA § 9-11-56 (h); Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641) (1978). See also Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980). Therefore, we deny Georgia Power’s motion to dismiss Reese’s first enumeration of error.

Next, Georgia Power moves to strike certain portions of the supplemental record sent to this court by the trial court. The items Georgia Power seeks to remove from the record now before this court are the motion to disqualify the law firm representing Georgia Power and Standley; the order denying that motion; the two depositions of Standley; and the deposition of Standley’s foreman.

We have not considered the depositions Georgia Power seeks to exclude from the appellate record as they were not timely filed.

2. First, Reese argues that the divergent interests of Georgia Power and Standley mandate the disqualification of the law firm representing them.

“ ‘The objection that an attorney is disqualified by reason of his representing adverse interest is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.’ 7 CJS Attorney & Client § 47 at 826. . . . [0]ther jurisdictions have . . . characterized [this] as the majority or general rule. See, e.g., In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88 (3) (5th Cir. 1976); Murchison v. Kirby, 201 F.Supp. 122, 123 (1) (S.D.N.Y. 1961); Otis & Co. v. Pennsylvania R. Co., 57 F.Supp. 680, 684 (4) (E.D. Pa. 1944).” Payne v. St. Louis Grain Corp., 562 SW2d 102, 106 (1977). See Lowe v. Graves, 404 S2d 652 (1981); Renard v. Columbia Broadcasting System, 126 Ill. App.3d 563, 567, 568 (5) (467 NE2d 1090); and 31 ALR3d 715, 726, 727, § 8.

Further, “courts have shown considerable reluctance to disqualify attorneys despite misgivings about an attorney’s conduct. As noted in Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979), ‘(t)his reluctance probably derives from the fact that disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical reasons (citations omitted). And even when made in the best of faith, such motions inevitably cause delay.’

“The court in Nyquist, accordingly, adopted a very strict standard for motions such as the instant one: Unless an attorney’s conduct tends to ‘taint the underlying trial,’ the court should be quite hesitant to disqualify him. 590 F.2d at 1246. Where there is no claim that the trial will be tainted, the appearance of impropriety, alone, ‘is too slender a reed on which to rest a disqualification order except in the rarest case.’ Id. at 1247. Accord Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981).” Tadier v. American Photocopy Equip. Co., 531 FSupp. 35, 36-37 (1981). See Blumenfeld v. Borenstein, 247 Ga. 406 (276 SE2d 607), and Rivers v. Goodson, 184 Ga. App. 70(1) (360 SE2d 740). Compare Georgia State Bd. of Pharmacy v. Lovvorn, 255 Ga. 259 (336 SE2d 238); Georgia Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (291 SE2d 524); and First Nat. Bank of Chattooga County v. Rapides Bank &c. Co., 145 Ga. App. 514 (4) (244 SE2d 51).

In the case sub judice, Standley makes no claim that his trial will be tainted. On the contrary, Reese appears to be the only party aggrieved by defendant’s choice of counsel. Consequently, since Reese can show no interest in compelling disqualification of defendants’ attorney and since the record does not indicate that either defendant is dissatisfied with defendants’ trial counsel, the trial court appropriately denied plaintiff Reese’s motion to disqualify. Compare Wood v. Georgia, 450 U. S. 261 (101 SC 1097, 67 LE2d 220), where a hearing was ordered by the United States Supreme Court to determine whether a conflict existed which required disqualification of an attorney who represented an employer and its employees, in an action where the employees were subject to criminal prosecution.

3. Reese contends the trial court erred in granting summary judgment to Georgia Power. We disagree.

“(T)o hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own. . . . The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. [Cit.]” Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738, 739 (356 SE2d 693) (1987).

It is undisputed that, at the time of the collision, Standley was returning to his job site after having had lunch with his mother and sister. The affidavits executed by Standley, his supervisor, and the man to whom the truck involved in the collision was assigned state facts demanding the conclusion that Standley was not acting within the scope of his employment at the time of the collision. The only portion of Standley’s affidavit addressing his authority to take the truck home with him and the purpose for that authority is the following: “I do operate a 1 ton truck with air compressor, arc welder, acetylene and oxygen tank, pneumatic jack and other equipment to repair Georgia Power Company vehicles and am allowed to take this particular truck home with me at night in case of an emergency whereby Georgia Power Company has an equipment breakdown and needs this vehicle on the scene for immediate repairs.” [Emphasis supplied.] Standley’s statement makes it clear that he was not furnished with just any truck, but with a truck carrying specific equipment to repair vehicles, and that the purpose of Standley taking that particular truck home was to make the truck and its equipment available, not to make Standley available. The affidavit clearly specifies that Standley had a “particular” vehicle assigned to him, which he was not driving at the time of the collision. In addition, the affidavit contains not even a hint that Standley’s use of the truck assigned to him was in any way intended to be for his benefit. Rather, it was assigned to him for Georgia Power’s benefit. The notion that Standley was therefore acting within the scope of his employment at the time of the collision is directly contradicted in Standley’s affidavit: “I have never been authorized by Georgia Power Company to use this 1 ton truck for my lunch hour”; in his supervisor Parrish’s affidavit: “Standley was not assigned any Georgia Power Company vehicle to be used for his lunch hour nor was he given authority to operate any Georgia Power Company vehicles during his lunch hour”; and in the affidavit of Monroe, to whom the truck was assigned: “At no time did I give . . . Standley any permission to drive the [truck involved in the collision] on [the day of the collision] or any other time.” It is crucial to recognize that the collision did not occur at a time when Standley was on his way to or from work in the truck assigned to him, but while he was on his lunch hour, on a purely personal mission, driving a truck which he had no authority to drive. In Standley’s affidavit and that of his supervisor, it is made abundantly clear that Standley’s lunch hour was his own, to use as he chose. “Standley is free to go wherever he chooses to have lunch or eat lunch on the Georgia Power Company premises.” (Parrish affidavit); “I was free to eat or go anywhere I desired so far as Georgia Power Company is concerned during my lunch hour.” (Standley affidavit). There is not the slightest hint that he was on call during his lunch hour. In fact, he was not paid for his lunch hour. “At the time of the collision I was on my lunch hour and the income I receive from Georgia Power Company is by the hour and I am not paid for my hour’s lunch each day.” (Standley affidavit); “Standley is paid by the hour and is given one hour for lunch each day and he is not paid for his lunch break.” (Parrish affidavit).

Unfortunately for Reese, there are no ambiguities and conclusions to be construed most favorably toward him. The uncontradicted evidence is that Standley, on his own time, took a Georgia Power vehicle he had no authority to take, and drove it on a purely personal mission.

The affidavits do not raise any inference that Standley was in the scope of his employment, and the plaintiff has not, as he must to avoid summary judgment, set forth specific facts showing that there is a genuine issue for trial. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979). See also Trollinger v. Bob & Carolyn Ford, 180 Ga. App. 252 (1) (349 SE2d 11) (1986). The record properly before us demands that we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Banke, P. J., Birdsong, Sognier, Pope and Beasley, JJ., concur. Carley, C. J., and McMurray, P. J., concur in Divisions 1 and 2 and dissent as to Division 3. Deen, P. J., and Ben-ham, J., concur in Divisions 1 and 3 and dissent as to Division 2.