This is a wrongful death action in which appellant, International Business Machines, Inc. (IBM) is only one of several defendants. Appellee-plaintiffs decedent was struck by an automobile being driven by IBM’s co-defendant Henner, an employee of IBM. Appellee’s complaint alleges that Henner was an employee of IBM and was acting within the scope of his employment at the time and place of the concerned incident. IBM, relying upon Henner’s deposition and answers to appellee’s interrogatories, moved for summary judgment on the grounds that at the time of the concerned incident Henner was traveling to dinner and was not acting within the scope of his employment. The trial court denied the motion but certified the order for interlocutory review. IBM’s application for interlocutory appeal was granted in order that we might review the trial court’s ruling in light of the Supreme Court’s decision in
Allen Kane’s Major Dodge, Inc. v. Barnes,
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
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employment.
West Point Pepperell v. Knowles,
Recognizing the aforestated premises, the Supreme Court in Kane held that once the employer or employee presents positive and uncontradicted evidence that the employee’s activities at the time and place in question were not within the scope of his employment, the plaintiff must show some other fact — other than the fact which gave rise to the initial presumption — from which a jury could infer that the employee was acting within the scope of the employment. In determining what “other fact” must be shown in order to submit a given case to the jury, the court stated: “If this ‘other fact’ is direct evidence, that is sufficient for the case to go to a jury. However, when the ‘other fact’ is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendаnt’s motion for summary judgment.” Kane, supra at 780.
At the time of the hearing on the defendant-employer’s motion for summary judgment in Kane, supra, the trial court had before it the following evidence: One Underhill was an employee of Allen Kane’s Major Dodge, Inc. and was driving a used car owned by Allen Kane which he was permitted to use аs personal transportation when the concerned collision occurred. In rebuttal to the presumption which arose from the foregoing facts, the trial judge had “the uncontrádicted affidavit of Underhill that at the time of the collision (late at night) he was engaged in a purely personal mission — i.e. barhopping — and was not attempting to further Allen Kane’s business in any manner.” Kane, supra at 777. In addition, there was evidence that while Underhill was without authority to consummate the sale of a vehicle other than at the dealership’s premises during regular business hours, he was allowed to solicit prospective purchasers at any time and that salesmen like Underhill were provided with an automobile, at least partially, for that reason.
In reversing the trial court’s grant of the employer’s motion for summary judgment, this court found the fact that Underhill had unrestricted authority “to solicit prospective purсhasers was an “additional circumstance” sustaining the presumption of the master-servant relationship. See
Barnes v. Allen Kane’s Major Dodge,
Notwithstanding the fact that Henner was driving a rental car the expense of which was fully paid by IBM (as opposed to being owned by IBM), IBM concedes that from the facts of this particular case the presumption arose that Henner was acting within the scope of his еmployment at the time appellee’s decedent was struck. However, IBM contends that Henner’s testimony on deposition and answers to appellee’s interrogatories rebutted said presumption. The record reveals that appellee propounded the following interrogatory to Henner: “At the time of the occurrence complained of, was the defendant acting within the scope of his employment?” Henner’s response thereto: “No. This defendant was on his way to dinner.” In his deposition, Henner never stated positively that he was not acting within the scope оf his employment or in the furtherance of his master’s business at the time of the concerned incident. Rather, Henner stated that he was on his way to dinner and recited additional information relative to his stay in Atlanta.
Assuming without deciding that the aforesaid testimony of Henner is sufficiently “clear, positive and unсontradicted” evidence to overcome the presumption that he was acting within the scope of his employment at the time of the concerned incident, the record contains several “other facts” within the meaning of the Kane case which show that there remain genuine issues for jury determination and that, therefore, summary judgment was properly denied.
The factual situation in the case at bar is distinguishable from that of the Kane case. The pertinent facts in this case as adduced from the deposition of Henner are as follows: At the time of the concerned incident resulting in the death of appellee’s decedent, Henner was an employee of IBM and was stationed in New York. However, during the week in which appellee’s decedent was killed, Henner was in Atlanta solely for the purpose of attending and participating in a series of conferencеs regarding a certain product marketed by IBM. IBM paid for his airplane fare to Atlanta, his meals and lodging while in Atlanta, and for the automobile which he rented (and which he was driving at the time of the fatal occurrence) at Hartsfield Airport upon his arrival in Atlanta. Henner testified that he did not use the rеnted vehicle to travel between his hotel and the site of the convention as IBM provided buses for such travel. He further testified that it was his usual practice to rent a car when out of *797 town, that IBM expected him to do so and that the company would pay for any reasonable use of thе car. In particular, Henner testified that IBM realized he would use the rented vehicle to travel, within reason, to restaurants for meals. On the other hand, IBM would not reimburse him for entertainment expenses. Henner further stated that at the time of the mishap, he and two other IBM employees were travеling from the Peachtree Plaza Hotel where he was staying to a restaurant in the Atlanta area and that they were going to dinner and no other place. The evidence — construed most strongly in favor of appellee — indicates that while the meetings being held at the convention hall might hаve ended for the day in question, the actual convention was not concluded until the day following the day of the incident resulting in the death of appellee’s decedent.
Contrary to the contentions of IBM, the aforesaid testimony constitutes additional, direct, as opposed to circumstantial, evidence that Henner was acting within the scope of the employment. This additional evidence creates genuine issues of material fact and provides the required “other facts” from which a jury could legitimately infer that Henner was acting within the scope of his employment. Aсcordingly, the matter should be resolved by the trior of fact. Compare
Stenger v. Mitchell,
Furthermore, the case at bar presents an issue which is not directly addressed or decided in the
Kane
decision, to wit: Whether or not for the purposes of imposing liability on the employer under the doctrine of respondeat superior an employee away from his home at the express directions of his employer, while lodging in public accommodations, going to or returning from a meal, is performing an act in the scope of his employment or necessarily incident thereto. In
American Oil Co. v. McCluskey,
While there is no Georgia decision in the context of respondeat superior directly on point, there are several workers’ compensation cases dealing with the question of employees whose jobs rеquire them to be out of town in pursuit of their master’s business and which are instructive on the scope of employment issue presented by the particular facts in the case at bar.
In
Thornton v. Hartford Accident & Indem. Co.,
In
General Fire & Cas. Co. v. Bellflower,
As previously noted, these workers’ compensation cases are not directly applicable to the issues of negligence and respondeat superior presented in the case at bar. However, the reasoning employed therein in determining whether or not the partiсular injury in question occurred during the scope of the employee’s employment appears to be sound and logical and we see no reason why the same logic should not apply to the case at bar. For the foregoing reasons, we conclude that issues of fact remain as to whether or not Henner was acting within the scope of his employment or performing acts necessarily incidental thereto at the time of the concerned incident. Accordingly, the trial court did not err in denying IBM’s motion for summary judgment.
Judgment affirmed.