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JAMES H. MARTER v. BEVERLY T. SCOTT AND PEPSI-COLA

NOVEMBER 04, 1987

JAMES H. MARTER
v.
BEVERLY T. SCOTT AND PEPSI-COLA, INC.



EN BANC.

PART I: HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

PART II: ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

PART I.

 James H. Marter has appealed from a summary judgment in favor of a Pepsi-Cola, Inc., bottling plant in the circuit court of Grenada County finding that a driver of a car searching for a mechanic to assist a disabled Pepsi truck and its driver stranded on the highway was not an agent of the bottler.

 We find there was no issue of fact on this question and affirm.

 FACTS

 Pepsi-Cola, Inc., the defendant in this case, is a local bottling plant corporation domiciled and with principal offices in Senatobia, Tate County. On July 1, 1983, Beverly T. Scott and Warren Brown were both employed by the defendant, she as a secretary-receptionist, and he as truck driver. They were personally acquainted and friends. On that day Scott, who lived in Hernando, was on her vacation driving her own automobile south on Highway 55, a four-lane interstate highway, when she observed a Pepsi-Cola truck stopped on the right shoulder. As she drove past the truck she recognized Brown. Scott continued approximately a mile to the Coldwater exit, where, because she knew Brown, she got off the highway, turned around and headed north to the truck to offer assistance.

 When she got even with the truck, she parked her car on the left shoulder, crossed the median and asked Brown if he would like a ride to the plant. Brown told her, no, asked her if she would get in touch with a mechanic. Scott returned to

 her car and set off to get a mechanic.

 While looking for the first place in which she could turn around and head south again, and about three miles south of Hernando she noticed a place where vehicles could cross the median. There was a sign, however (which she did not notice at the time), which prohibited cars from crossing the median.

 Scott pulled over onto the left lane and was proceeding onto the shoulder in order to cross the median. There was great deal of traffic headed north on this day, and some cars braked suddenly behind her. Behind these the plaintiff Marter was driving an eighteen-wheel International truck and trailer. In order to avoid a collision with the suddenly braking cars just ahead, he pulled off onto the shoulder and struck Scott's automobile. Scott was not injured, but Marter suffered personal injuries in the accident.

 On January 21, 1985, Marter filed suit in the circuit court of Grenada County naming Scott and Pepsi-Cola, Inc., as defendants. As one of its defenses, Pepsi-Cola, Inc., denied Scott was an agent and employee acting within the scope of her employment at the time of the accident.

 Following the taking of depositions in which the facts as above related were developed, Pepsi-Cola, Inc., moved for summary judgment, which was sustained by the circuit judge.

 An order dismissing the case with prejudice against Pepsi-Cola, Inc., was entered by the circuit judge on July 19, 1985.

 Following this, on August 5, 1985, a stipulation of dismissal without prejudice was entered regarding Scott pursuant to Rule 41(a)(1)(ii) of the Mississippi Rules of Civil Procedure.

 Marter has appealed from the order dismissing the case with prejudice as against Pepsi-Cola, Inc.

 PART II.

 Appellant assigns only one error in the trial below, i.e., Beverly T. Scott was an "emergency employee" of Pepsi-Cola, Inc., acting within the course and scope of her employment at the time of her collision with the appellant and the lower court erred in granting the summary judgment motion

 of Pepsi-Cola, Inc.

 At page 2 of the appellant's brief, he states that the only issue on this appeal is whether Beverly T. Scott at the time of the motor vehicle collision with plaintiff was an emergency employee of Pepsi-Cola, Inc.

 Paragraph (6) of the complaint charges that Beverly T. Scott was the agent of Pepsi-Cola, Inc. as follows:

 At and about the date and place first mentioned above in paragraph 5, the Defendant, Beverly T. Scott, was the agent, servant, or employee of Defendant Pepsi-Cola, Inc. and was acting within the course and scope of her employment.

 The sole issue presented to the trial court in Pepsi-Cola's motion for summary judgment is whether Scott was acting within the scope and course of her employment with Pepsi-Cola at the time of the accident, and, in addition, whether Pepsi-Cola employee Warren Brown had the authority, either actual or apparent, to request Scott to contact a mechanic for the disabled truck, so as to bind Pepsi-Cola by Scott's actions.

 As stated on appeal, the appellant Marter relies upon the emergency employment doctrine. In order to invoke that doctrine, the burden is on the appellant to show that an emergency did exist. Saldukas v. McKerns, 340 Pa. 113, 16 A.2d 30 (1940). The plaintiffs must establish (1) that the situation is created suddenly and unexpectedly, and (2) that the emergency rendered it necessary, in the employer's interest, that the employee have assistance to perform the work the employer has required. Heckman v. Warren, 124 Colo. 497, 238 P.2d 854 (1951); Hall v. O.C. Whitaker Co., 143 Tex. 397, 185 S.W.2d 720 (1945).

 Ms. Scott was on a week's vacation from her employer, Pepsi-Cola. She knew Brown well, recognized him when she passed, and turned around to check on him. There was no urgency in the breakdown because the truck was not blocking the freeway, and Brown could have performed the work himself. He had three options: (1) he could have waited for some action to be taken by the warehouse manager; (2) he could have waited for a highway patrolman; or (3) he could have walked the one mile to the Coldwater exit and called the plant. These options may have entailed some inconvenience on the part of Brown, but the mere avoidance of inconvenience will not invoke the doctrine of sudden emergency employment. Hall, 143

 Tex. at 403, 185 S.W.2d at 723. Brown's belief that he should remain with the truck is not sufficient to show an emergency. Central Ky. Traction Co. v. Miller, 147 Ky. 110, 143 S.W. 750 (1912) (holding that it is not sufficient to show simply that the employee believed that an emergency existed).

 The proper issue in this case, as presented to the lower court, is not whether Scott was an emergency employee, but whether she was acting within the scope of her regular employment with Pepsi-Cola. This Court discussed the question of determination of scope of employment in Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So. 2d 250 (1945). Therein it was stated that the scope of employment extends to everything "incident to that ultimate purpose which constitutes [the employee's] job," 199 Miss. at 59, ...


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