Johnstown Financial Corp. v. Roper

Banke, Judge,

dissenting.

I believe the employee’s ownership of the vehicle is a “red herring” under the facts of this case and is not controlling on the issue of whether his employer is entitled to summary judgment. The test set forth in Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979), to determine whether the plaintiff’s evidence is sufficient to withstand a defendant-employer’s motion for summary judgment on the question of respondeat superior liability applies only “[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 . . .” Id. at 777.

The employee in this case testified that he was on 24-hour call to perform emergency repairs at the time the accident occurred. He further stated that he had been summoned to make about five such emergency repairs during the 48-hour period prior to the collision, including one which lasted from 11 o’clock at night until 4 o’clock the next morning, thus allowing him only a few hours sleep before reporting back to work. On the morning the collision occurred, he was summoned on the beeper at 8:30 a.m. to perform a repair which he completed at about 11:30 a.m. As he was driving to visit his father approximately 45 minutes later, he fell asleep at the wheel and “rear-ended” the decedent’s vehicle, which was stopped at a red light. Reeves testified that he was still on call at this time, that he was carrying with him in his truck all the tools which he used to perform his maintenance work, and that he would have responded immediately had he been paged again on the beeper.

Clearly, this testimony does not establish as a matter of law that Reeves’ alleged negligence occurred entirely outside the scope of his employment. Compare Allen Kane’s Major Dodge v. Barnes, supra (where the employee testified that he had been “barhopping” when the collision occurred); Evans v. Dixie Fasteners, 162 Ga. App. 74 (290 SE2d 172) (1983) (where the employee testified that he was returning home from an evening of drinking beer, shooting pool, and playing cards with his friends); and Short v. Miller, 166 Ga. App. 265 (304 SE2d 434) (1983) (where the employee was riding around aimlessly with a friend at 2:00 a.m.). I would hold that a fact issue remains as to whether Reeves was in the service of his employer, and I would therefore affirm the denial of the appellant’s motion for summary judgment.

I am authorized to state that Chief Judge McMurray and Presiding Judge Deen join in this dissent.