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GERALD DONALD v. REEVES TRANSPORT CO. OF CALHOUN

FEBRUARY 01, 1989

GERALD DONALD
v.
REEVES TRANSPORT CO. OF CALHOUN, GEORGIA AND HARRY RANDALL STRICKLAND



BEFORE DAN LEE, PRATHER AND PITTMAN.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

This appeal is from an interlocutory order of the Circuit Court of Lamar County, Mississippi, denying the appellant's motion for summary judgment. In a negligence action brought by the appellees, Reeves Transport Company and Harry Randall Strickland, against Gerald Donald and the estate of Ronald J. Loewenstein, Jr., the appellant Donald filed a motion for summary judgment in his favor. The trial judge denied the motion, but removed the case from the docket until an interlocutory appeal from the denial of the motion could be heard by this Court. From the judge's denial of his motion, Donald filed this appeal on March 30, 1987. We affirm.

 FACTS

 When this cause of action arose, Gerald Donald was the owner and operator of a business under contract with the Mississippi State Highway Department to clear vegetation along Interstate Highway 59 in Forrest County. The crew performing this work was composed of Gerald Donald, Gene Donald, Walter Leggett, and Ronald Loewenstein. Gerald Donald's crew utilized, among other equipment, a one-ton truck and a Mor-Bell shearer, a vehicle used to harvest timber. The shearer was a three-wheeled vehicle designed for maneuverability. It was an off-the-road vehicle, equipped neither with lights nor an ignition lock, and was not safe for highway use. The equipment ordinarily was kept overnight at the area where the crew's work was in progress.

 Ronald Loewenstein's duties for Gerald Donald's business involved only cleanup. Loewenstein never operated any of the machinery in the course of his duties. The usual hours of Gerald Donald's work crew were from approximately 7:00 a.m. until between 3:00 p.m. and 5 p.m., depending on when the crew finished chipping the last load of wood for the day. Donald's crew never worked at night.

 On October 21, 1983, Gerald Donald's crew was working at the Interstate Highway 59 and U. S. Highway 98 interchange near Hattiesburg. Gerald Donald was not present at the work site that day. Walter Leggett finished work and left the work site at approximately 3:30 p.m. to carry a load of wood chips to Masonite Corporation in Laurel, Mississippi. Gene Donald departed the work site at approximately 4:00 p.m. Gene Donald had given Loewenstein permission to drive Gerald Donald's one-ton truck home, because Loewenstein's vehicle was disabled and Loewenstein needed transportation to and from work. Ronald Loewenstein left the work site in Gerald Donald's truck at approximately 4:00 p.m. No member of Gerald Donald's crew, including Loewenstein, had any additional work to be performed until 7:00 a.m. the following morning.

 Loewenstein, who was married, was seeing a woman named Martha Singley on a social basis. Loewenstein arrived at Singley's mobile home at approximately 4:00-5:00 p.m. that day. Also at Singley's mobile home that day was a man named Jackie Walters, who, according to Singley, was just a friend. According to Singley, Walters called Loewenstein to the back room of the mobile home and the two of them talked an hour or longer. Later, Singley said something to Walters which made him angry, and he hit the window of Singley's trailer door, breaking the window and cutting Walters' hand. Singley asked Loewenstein if he would go to the store to get some bandages, and Loewenstein said that he would. Singley estimated that it was around 9:00 or 10:00 p.m. when Loewenstein left to get the bandages. Loewenstein had consumed three cans of beer while at Singley's home. Singley never saw Loewenstein again.

 That same evening, Harry Randall Strickland was driving an 18-wheel truck owned by Reeves Transport Co. of Calhoun, Georgia. Strickland was headed south on Interstate Highway 59. Sometime after 9:00 p.m., when Strickland reached a point approximately one-half to one mile south of U. S. Highway 98, his truck collided with the Mor-Bell shearer owned by Gerald Donald. Strickland was injured, and the 18-wheel truck received considerable damage. Loewenstein's body was found at the crash site. Approximately one-quarter mile to one-half mile south of the crash site, Donald's one-ton truck was found stuck in mud in the median of Interstate Highway 59. Apparently, Loewenstein had gotten Donald's truck stuck while on a personal mission to purchase the bandages requested by Ms. Singley. It further appeared that Loewenstein had gone to the work area where Donald's equipment was stored, had started the Mor-Bell shearer and was steering the shearer along the highway or shoulder when the accident occurred. Presumably, Loewenstein intended to try to extricate the truck from the mud. The appellees concede that this is apparently what happened.

 On October 2, 1986, Reeves Transport Company and Harry Randall Strickland filed a complaint in the Circuit Court of Lamar County, Mississippi, against Gerald Donald and the estate of Ronald J. Loewenstein, Jr. (The complaint was originally filed on October 12, 1984, but pursuant to a stipulation by the parties, the complaint was dismissed without prejudice and refiled.) The complaint alleged that Loewenstein was negligent in the operation of the Mor-Bell shearer, that at the time of the accident Loewenstein was acting within the scope of his employment, and that Loewenstein's negligence was thus attributable to Gerald Donald.

 The plaintiffs admitted that Loewenstein was not acting within the scope of his employment when he got the one-ton truck

 stuck, but contended that at the time of the accident, Loewenstein was engaged in an attempt to preserve his employer's property and, therefore, under the "emergency employment" doctrine, was brought within the scope of his employment.

 Gerald Donald filed a motion for summary judgment, claiming that there was no question of fact and that, as a matter of law, Loewenstein was not acting within the course and scope of his employment when the accident occurred. Donald contended, therefore, that he was not vicariously liable for the alleged negligence of Ronald Loewenstein.

 On February 10, 1987, the trial judge denied Donald's motion for summary judgment, finding that "a purely personal mission initially can change and be converted to a joint personal and business purposes mission when the character of the mission changes from purely personal to preserving the property of the employer." (R. 184) Furthermore, the trial judge found that, even though Loewenstein was going to get bandages for Ms. Singley, it was possible that he also intended to go by the job site for some purpose. That possibility, ...


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