William Collins was riding a motorcycle when he was involved in a collision with a truck driven by Jack Everidge and owned by Harold Jones, d/b/a Dove Construction. Collins and his wife, Dawn, filed separate actions as a result of the injuries sustained by William. Both suits were brought on the theories of respondeat superior and negligent entrustment. The trial court granted summary judgment in favor of Jones and Dove Construction and the Collins appeal.
1. Appellants contend that the trial court erred in granting summary judgment in favor of Jones on the issue of respondeat superior because there is an issue of fact as to whether Everidge was in the scope of his employment at the time of the collision. It is undisputed that Everidge was employed by Jones and that the truck he was driving was owned by Jones. The collision took place on a Saturday afternoon; Everidge was not working on the day of the collision but Jones had allowed Everidge to use the truck over the weekend. Everidge was to pick up other employees of Jones on his way to work the following Monday. Everidge testified on deposition that he was on his way to the drugstore to purchase medication for himself when the collision occurred. “It is a recognized principle under Georgia law that when an employee is involved in a collision, while operating his employer’s vehicle, a presumption arises that he is acting within the scope of his employment.
West Point Pepperell v. Knowles,
The appropriate test to determine when a plaintiff in this kind of case can overcome a defendant’s motion for summary judgment is stated in
Allen Kane’s Major Dodge v. Barnes,
The uncontroverted evidence in the instant case is that Everidge was in no manner performing any service that could be considered in the prosecution of his employer’s business, thus the presumption was rebutted. The “other evidence,” i.e., Everidge’s responsibility of picking up other Jones employees on Monday morning, had nothing whatever to do with his activities on Saturday. “The test is whether the particular activity engaged in serves in some way to prosecute the employer’s business ...” Massey v. Henderson, supra, p. 567.
The cases cited by appellants in support of their contention that the jury should decide whether Everidge was acting within the scope of his employment are clearly distinguishable. In
Davies v. Hearn,
In
West Point Peppered 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. This court held that in such a case, unless it was plain and undisputable that the action of the employee was not in the
*710
prosecution of his master’s business, a jury question was presented. Id., at 256. In
Chappell v. Junior Achievement &c. Atlanta,
Finally, in IBM, Inc. v. Bozardt, supra, at p. 797, the employee was driving a rental car at the expense of the employer, and, while away from his home at the express directions of his employer, while lodging in public accommodations, and while going to and from meals, he was performing an act in the scope of his employment or necessarily incident thereto.
We do not find that the circumstantial evidence in the instant case constitutes such “other facts” sufficient to support a verdict in favor of appellant. The fact that Everidge had the use of the truck over the weekend and was to pick up laborers on Monday morning was perfectly consistent with the unimpeached testimony that Everidge was not acting within the scope of his employment at the time of the collision with Collins. Allen Kane’s Major Dodge, supra, at p. 781. Thus, it was not error for the trial court to grant summary judgment on the issue of respondeat superior.
2. Appellant also contends that the trial court erred in granting summary judgment in favor of Jones on the issue of negligent entrustment. On deposition, Jones steadfastly denied knowledge that Everidge had a drinking problem; he denied that Everidge came to work when he was drinking; and he denied knowledge that Everidge had ever been drinking while driving Jones’ truck. Everidge testified that he did not consider himself a problem drinker but that he drank beer when he wanted one and that Jones knew that he drank some; that he had received three tickets for DUI (including the ticket issued in connection with the collision with Collins), but that the prior two incidents were in North Carolina in 1967. There was no evidence that Jones knew of the prior DUI incidents. Both Jones and Everidge testified that Jones had admonished Everidge not to drink and drive the truck.
“Under the theory of negligent entrustment, ‘liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. [Cits.]’
Saunders v. Vikers,
Even assuming that appellants produced evidence that Everidge may have been an incompetent or reckless driver, we see no evidence either direct or circumstantial that Jones had any
actual knowledge
of a pattern of recklessness or any incompetency on the part of Everidge. See
Jones v. Cloud,
3. Appellants’ other enumeration of error is totally without merit.
Judgment affirmed.