The trial court erred in granting a summary judgment in favor of the defendant employer since the determination of the issue of scope of employment upon which its motion was predicated was for the jury.
Willie Mae Ayers filed suit against Barney A. Smith Motors, Inc., an automobile dealer in Macon, Ga., and William Samuel Payne, a commission-salesman in its employ. The plaintiff's petition alleged that her husband had been killed as the result of the negligent operation of an automobile belonging to the defendant motor company by its employee, Payne, while he was acting in the furtherance of his employer's business and within the scope of his employment.
A motion for summary judgment was filed by the defendant motor company on the ground that Payne was on a personal mission and was not acting within the scope of his employment at the time of the injury to the decedent. This motion was supported by affidavits showing that at the time of the fatal occurrence the defendant salesman was en route from Macon, Ga., to Simpsonville, S.C., for a social visit with his parents and that he had no plans to call on any prospective customers or conduct any other business on behalf of his employer during this trip.
Other facts adduced on consideration of this motion disclosed that the automobile in question, a 1965 Mercury, had been assigned to the defendant salesman on a full-time basis for use as a demonstrator; that this automobile was being operated under a dealer's tag which had been issued to the defendant motor company; that the salesman was not restricted as to time or area in which he could solicit prospective purchasers; and that he would have attempted to interest a prospect in buying an automobile on this particular trip to South Carolina if the opportunity had presented itself.
After consideration of this evidence, the trial court granted the motion for summary judgment; and the exception is to that judgment, it being insisted by the plaintiff that the determination of the issue of scope of employment was for the jury under the facts of this case.
JORDAN, Judge.
The trial court erred in granting a summary judgment in favor of the defendant motor company. The fact that this defendant owned the automobile involved in the fatal occurrence and that its employee was driving the vehicle at the time, was sufficient to raise a presumption that the employee was operating the defendant's automobile within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (1) ( 186 S.E. 877); Hall v. Cassell, 79 Ga. App. 7 ( 52 S.E.2d 639); Hix-Green Co. v. Dowis, 79 Ga. App. 412 (2) ( 53 S.E.2d 601); Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618).
This presumption is a rebuttable one, but "in order to overcome it as a matter of law the evidence of the defendant should be clear, positive, and uncontradicted that the servant was not at the time in the prosecution of his master's business or acting within the scope of his employment." Abelman v. Ormond, 53 Ga. App. 753, 761 ( 187 S.E. 393). "Where there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment the presumption is not overcome as a matter of law even though the master and servant positively testify that what he was doing was without the scope of his employment. The issue is generally one for the jury." F. E. Fortenberry Sons, Inc. v. Malmberg, 97 Ga. App. 162, 166 ( 102 S.E.2d 667).
In addition to the circumstances which gave rise to the presumption in the present case, the record discloses the fact of the full-time assignment of a new demonstrator automobile to the defendant company's salesman who was employed on a commission only basis, his unrestricted authority to solicit prospective purchasers, and the fact that he would have attempted to make a sale during the weekend visit to his parents if the opportunity had presented itself. The evidence further showed that this automobile was being operated under a dealer's license tag issued to the defendant motor company; and under the provisions of Code Ann. § 92-2903, "such tag is to be used solely `for the purpose of demonstrating or transporting dealers' vehicles or trailers for sale.'" Home v. Great American Ins. Co., 109 Ga. App. 24, 28 ( 134 S.E.2d 865).
Under these facts and circumstances a jury could, as stated in the Fortenberry case, supra, at p. 166, "legitimately infer that the servant was acting within the scope of his employment . . . even though the master and servant positively testify that what he was doing was without the scope of his employment." It cannot be said, therefore, under the record in this case that a finding was demanded for the employer on this issue, which "is generally one for the jury."
The cases of Stenger v. Mitchell, 70 Ga. App. 563 (1) ( 28 S.E.2d 885), and Fambro v. Sparks, 86 Ga. App. 726 (3) ( 72 S.E.2d 473), which are relied upon by the defendant motor company as authority for its contention that a finding was demanded as a matter of law that the defendant salesman was not acting within the scope of his employment, are distinguishable from the present case. Among other things, these cases did not involve a factual situation in which a new demonstrator automobile had been assigned to the defendant's employee on a full-time basis, and this court in the Fambro case, supra, cited this fact in distinguishing the Petty case, supra, relied upon by the plaintiff here, where the defendant's agent "in connection with his employment . . . was furnished a new model Ford V-8 as a demonstrator car, his duty being to demonstrate the car to prospective purchasers."
The factual situation here was sufficient to make a genuine issue of material fact and the trial court erred in granting the defendant's motion for a summary judgment. Judgment reversed. Deen, J., concurs. Felton, C. J., concurs specially.