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02/26/76 ROWE v. COLWELL

February 26, 1976

ROWE
v.
COLWELL



Appeal from Oakland, Robert L. Templin, J.

Leave to appeal applied for.

McGregor, P. J., and Bashara and Allen, JJ.

SYLLABUS BY THE COURT

1. Judgment -- Summary Judgment -- Pleading -- Complaints -- Failure to State Claim -- Court Rules.

A motion for summary judgment for failure to state a claim is to be tested by the well pleaded facts in the complaint without reference to depositions or affidavits, and the court must accept as true the well pleaded facts contained therein and may grant judgment only when plaintiff's claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).

2. Judgment -- Summary Judgment -- Failure to State Claim -- Pleading -- Legal Sufficiency -- Court Rules -- Factual Sufficiency.

A motion for summary judgment on the grounds that the opposing party has failed to state a claim upon which relief can be granted requires the trial court to test only the legal sufficiency, and not the factual sufficiency, of the pleadings; where the "well pleaded facts" of the plaintiffs' claim met the test of legal sufficiency, it was error for the trial court to grant summary judgment for failure to state a claim upon which relief could be granted (GCR 1963, 117.2[1]).

3. Judgment -- Summary Judgment -- Appeal and Error -- No Issue of Fact -- Consideration of All Evidence -- Reasonable Doubt -- Court Rules.

Review of a trial court's ruling on a motion for summary judgment on the basis that there is no genuine issue as to any material fact must take into consideration all depositions and other documentary evidence and upon review of all such material, summary judgment is not to be granted unless, after giving the benefit of every reasonable doubt to the party opposing the motion, there is no genuine issue as to any material fact (GCR 1963, 117.2[3]).

4. Master and Servant -- Scope of Employment -- Jury Questions -- Trial Courts.

The question of whether one who drives his own car and who after normal working hours negligently injures a third party is acting within the scope of his employment is a question which, in most instances, should be left to the jury; but where the facts are not in dispute and where no conflicting inferences may reasonably be drawn therefrom, the determination of whether the employee was acting within the scope of his employment is for the court.

5. Master and Servant -- Scope of Employment -- Travel -- Tests.

The test for determining whether an employee who is traveling was acting within the scope of employment is: if the work of the employer creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own; if however, the work is merely incidental to the travel, and the trip would not have been made but for the private purpose of the servant, he is out of the scope of employment in making it.

6. Master and Servant -- Scope of Employment -- Social Gatherings -- Testimony -- Inferences -- Summary ...


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