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Broadway v. Kelley Brothers Contractors6/8/2000
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 05/22/1998
TRIAL JUDGE: HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT
DISPOSITION: REVERSED AND REMANDED - 06/08/2000
EN BANC.
. Morris Robinson was employed by Kelley Brothers Contractors, Inc. (Kelley Brothers). His position entitled him to the use of a company truck. On Sunday morning, October 27, 1996, Robinson was driving his company truck to Elam Baptist Church, located in Clarke County. On the way, his company truck collided with a passenger vehicle driven by Melissa Broadway. Broadway's three-year old son, Alex, was killed. Broadway filed a wrongful-death action in the Clarke County Circuit Court against Kelley Brothers alleging vicarious liability on the part of the employer. This action was dismissed on motion for summary judgment. The Court of Appeals affirmed. Broadway v. Kelley Bros. Contractors, Inc., No. 1998-CA-01195-COA (Miss. Ct. App. June 8, 1999). We grated certiorari, and we reverse and remand.
DISCUSSION
. We have stated:
This Court conducts a de novo standard of review when considering a lower court's grant of summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). This entails reviewing all the evidentiary matters before it in the light most favorable to the party against whom the motion has been made. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be affirmed; otherwise, it should be reversed. Short v. Columbus Rubber & Gasket Co., 535 So.2d at 63. Levens v. Campbell, 733 So.2d 753, 757 (Miss. 1999).
With regard to an employer's vicarious liability for the acts of its employees, this Court has held
When an automobile or truck is involved in an accident while being driven by the owner's regular driver-employee, it is presumed that the driver is at the time engaged in the scope of his employment. The burden of rebutting this presumption, thereby avoiding liability for the driver's negligence, is upon the employer. This can be done by showing a deviation so substantial as to amount to an entire departure from the employer's business for purposes entirely personal to the servant. Tullier v. Capitol Constr. Co., 190 So.2d 880 (Miss.1966); Colotta v. Phillips, 226 Miss. 870, 85 So.2d 574 (1956). On the other hand, where an employer merely loans a vehicle to an employee and the employee uses it for his personal business or pleasure in which the employer has no interest, the employer is not liable for the negligent acts of the employee while thus using the borrowed vehicle. Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370 (1953); Brown v. Bond, 190 Miss. 774, 1 So.2d 794 (1941). Riverside Industries of Philadelphia v. Watkins, 195 So.2d 844, 845 (Miss. 1967).
We have also applied and cited with approval the general rule found at 35 Am. Jur., p.989.
The test of the employer's liability for the act of an employee who departs from the employer's business for purposes of his own is whether he was engaged in his employer's business at the time of the accident, and not whether he purposed to resume it. The employee is, so long as he is engaged in affairs of his own or in pursuing some purpose unrelated to his master's business, acting as much outside the scope of his employment as he would be were his working day ended, or his task completed, and thus his employer is relieved from liability for the consequence of any tortious conduct committed by the employee during that period, howev
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