276 So. 2d 77 | Fla. Dist. Ct. App. | 1973
Lead Opinion
Appellant seeks review of a summary judgment entered, in favor of appellee White and his insurance carrier.
Appellee Johnson had worked for Mr. White for some forty years doing odd jobs and yard work around White’s nursery. Johnson was driving his own truck when it collided with the car driven by Mrs. Faye Standley. Mrs. Standley died as a result of the accident, leaving her husband and four children as survivors.
On the morning of the accident instead of reporting for work at the usual time, Johnson had gone to a nearby drugstore to get some medicine for his wife. After getting the medicine, he went to a gas station across the street from the drugstore and purchased a gallon can of gas for use in the lawn mower at the nursery. Johnson then dropped the medicine off at his home and proceeded to work, stopping at another service station to purchase gas for his truck. As Johnson pulled out of this sec- ■ ond service station, he turned into the oncoming traffic, striking Mrs. Standley’s car. Part of Johnson’s work at the nursery was keeping the lawn mower filled with gas and his truck was used in his work for hauling dirt and fertilizer. At the time of the accident, Johnson also had some of Mr. White’s tools in his truck which he had carried home that weekend.
Appellant contends that the trial court erred in determining as a matter of law that no material issue of fact exists as to whether employee Johnson was within the scope of his employment at the time the accident occurred, thereby rendering employer White vicariously liable for Johnson’s negligence. We agree.
It is the well recognized rule that an employee driving to or from work is not within the scope of employment so as to impose liability on the employer. This is true even though the car driven by the employee is used in his work and partly maintained by the employer, Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946).
However, in the case at bar, Johnson was doing more than merely driving to work. He adduced evidence that he had been instructed to keep the lawn mower filled with gas and was in fact transporting gas to the nursery as part of his job and for the benefit of his employer.
The Supreme Court of Oklahoma was faced with an identical situation in Haco Drilling Co., Inc. v. Burchette, 364 P.2d 674 (1961). In that case, Haco was involved in drilling an oil and gas well about 25 miles from Norman, Oklahoma. The driller hired his crew and was empowered to give instructions as to what they were to do. The driller had instructed one
Appellee’s reliance on cases which discuss the doctrine of deviation from one’s course of employment, such as Nichols v. McGraw, 152 So.2d 486 (Fla.App.1963), are not persuasive since here the accident occurred after the defendant Johnson had completed his errand with the medicine for his wife and had gone back to the business of getting himself and his employer’s gas to work.
Accordingly, we hold that the proofs adduced precluded entry of a summary judgment in the face of justiciable issues of material fact.
Reversed.
Dissenting Opinion
(dissenting).
I am unable to agree with the majority opinion which holds that the employee, Johnson, was in the course of his employment at the time his negligent operation of the vehicle owned and driven by him resulted in the damages suffered by plaintiff.
It is admitted that Johnson’s employment with appellee, J. Edwin White, did not commence until he arrived at the farm and entered upon the performance of his normal duties. It was while on his way to work that he stopped and purchased a one gallon can of gasoline which he anticipated would be later needed on the farm for use in operating a mower. He was authorized by White to purchase gasoline when needed for this purpose. It was after Johnson purchased the can of gasoline in question and then embarked on his trip to the farm that the collision involved in this case occurred.
The question presented on this appeal is whether Johnson’s act in purchasing the gasoline to be later used in the performance of his duties after arriving at the farm placed him in the course of his employment with White at the moment he purchased the gasoline and for all times thereafter prior to reaching the farm and entering upon his normal duties. It is my conclusion that it did not.
While it is true that when Johnson purchased the gasoline for the use and benefit of his employer, he was acting as the employer’s agent because he did so with the employer’s implied knowledge and consent. Thus, the employer, White, would . have been liable for any acts committed by his agent with regard to the purchase and handling of the can of gasoline. This does not mean, however, that by purchasing the can of gasoline while in town and before departing for his job Johnson was then in the course of his employment. The purchase of the gasoline might be considered as an act incidental to Johnson’s employment with White but not an act of such nature as to place him in the course of his employment at the time the purchase was made.
It is my conclusion that the trial court was correct in granting summary judgment on the undisputed evidence before him, and the judgment should be affirmed.
. Foremost Dairies, Inc. v. Godwin (1946) 158 Fla. 245, 26 So.2d 773, 774.