 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Royal Insurance Co. v. Fisher6/22/1999
in order to overcome the subject presumption, the employer "must" submit clear, positive and uncontradicted evidence. Massey v. Henderson, 138 Ga. App. 565 (1) (226 SE2d 750) (1976), cited in Allen Kane's, holds that even though the master and servant positively testify that what the servant was doing was without the scope of his employment, the presumption is not overcome as a matter of law "' here 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. . . .' [Cit.]" 138 Ga. App. at 566 (emphasis deleted). It would seem to follow that where the employer does not present uncontradicted testimony that the employee was acting outside the scope of his employment, the employer has not overcome the presumption in the way the law mandates and the opposite party becomes entitled to summary judgment or a directed verdict (issues not raised in Barfield).
However, the court in Allen Kanes does state in footnote 3 of its opinion that where the employer fails to rebut the presumption that the driver was acting within the scope of his employment, a jury trial is necessary. 243 Ga. at 783. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (186 SE2d 877) (1936), is cited.
In Dawson, the action was against the employer , and the plaintiff's own testimony was conflicting on whether the employee was acting within the scope of his employment. The court did hold that the question was one for the jury, but no burden of submitting "clear, positive, and uncontradicted" evidence was placed on the employer. 53 Ga. App. at 748-750 (2). This burden was created in Abelman v. Ormand, 53 Ga. App. 753, 761 (6) (187 SE2d 393) (1936), decided approximately three months after Dawson. Nonetheless, Abelman and cases following it are authority for the proposition that by submitting clear, positive and uncontradicted evidence, the employer overcomes the presumption as a matter of law, thereby becoming entitled to summary judgment (or a directed verdict); but if the evidence submitted by the employer would merely authorize though not demand a finding that the employee was not acting within the scope of his employment, it is a jury question as to whether the presumption has been overcome. See Thomason v. Harper, 162 Ga. App. 441, 451 (5) (289 SE2d 773) (1982); Veal v. Paulk, 121 Ga. App. 575, 578 (6) (174 SE2d 465) (1970).
Therefore, the trial court's charge to the jury in this case was legally erroneous. It in effect directed the jury to enter a verdict in defendants' favor because Royal failed to submit clear, positive, and uncontradicted evidence that Fisher was not acting within the scope of his employment at the time of his collision. This precluded the jury from returning a verdict in favor of Royal and Single Source even though they introduced evidence authorizing a finding that Fisher was not acting within the scope of his employment at the time. A new trial is therefore required.
2. We need not address the remaining enumerations because they either were not preserved by objection at trial or involve matters not likely to recur on retrial.
Judgment reversed. Blackburn, P. J., and Barnes, J., concur.
|