#### William O. STANDLEY, Individually, et al., Appellants, v. Joseph JOHNSON et al., Appellees.

No. S-326.

District Court of Appeal of Florida, First District.

April 17, 1973.

*78Jackson G. Beatty, Gregory, Towles & Beatty, and Hal A. Davis, Quincy, for appellants.

Frank C. Amatea, Keen, O’Kelley & Spitz, Donald O. Hartwell, Hall, Hartwell & Hall, J. Marshall Conrad, Ausley, Aus-ley, McMullen, McGehee & Carothers, Tallahassee, for appellees.

SPECTOR, Chief Judge.

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 *79crewman to stop on his way to work from home at an ice house and bring ice and water to the drill site. Haco did not furnish the car and paid no expenses of its operation. The accident occurred at 6:20 A.M. and the crewman was to report for work and wages began at 7:00 A.M. The court held that the above factual situation presents an exception to the general rule that a man’s employment does not begin until he has reached the place of his employment. The court stated that the fact that the crewman was on his way to work does not vary the fact that he was engaged in carrying out instructions given relative to performance of acts in his employment. Likewise, in the instant case, the evidence adduced in the summary proceedings, if believed by a jury, is sufficient to show that Johnson was rendering a service for his employer sufficient to impose liability even though he was on his way to work and not being compensated at the time of the accident. Atlanta Life Insurance Co. v. Stanley, 276 Ala. 642, 165 So.2d 731 (1964).

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.

CARROLL, DONALD K., J„ concurs.

WIGGINTON, J„ dissents.

WIGGINTON, Judge

(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.

*80The factual situation in this case and the law applicable thereto are analogous in all material respects to that found in the case of Foremost Dairies, Inc. v. Godwin.1 In that case one Howell was an employee of Foremost Dairies and used his car in the performance of his duties for his employer. On the day in question Howell drove his car to the residence of a co-employee in order to pick up the latter and take him to work. In transporting the co-employee to the office of the employer, Howell was performing an act which was of benefit to the employer. While enroute from the co-employee’s residence to the company office Howell negligently operated his vehicle in such manner as to injure the plaintiff, resulting in substantial damages. The employer, Foremost, was joined as a party defendant on the theory that Howell was in the course of his employment at the time of the collision while on his way to work because while enroute he had performed an act of benefit to the employer. In rejecting this contention, the court quoted with approval from the decision rendered by the Supreme Court of Washington which held .that an employee merely going to and from work in his own car is not in the course of his employment even though he may be allowed compensation by the employer for the use of the car in and about the latter’s business. The court in the Foremost Dairies case acknowledged that had the employee, Howell, arrived at the place of his employment and actually entered upon the duties of his employment after which the collision occurred, a contrary rule of law would apply. By the same token in the case sub judice had Johnson arrived at the farm and entered upon the performance of his duties in the course of which he drove his truck to a service station for the purpose of purchasing the gasoline to be used in the mower operated by him, and while on such trip the accident involved in this case occurred, a different rule of law would be applicable. Such, however, is not the case.

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.

1

. Foremost Dairies, Inc. v. Godwin (1946) 158 Fla. 245, 26 So.2d 773, 774.