1 So. 2d 906 | Ala. | 1941
Lead Opinion
The appeal is from judgment for damages, resulting from an automobile collision. The case was duly presented in oral argument and in brief of counsel. The questions of moment for decision are whether there was evidence to warrant the submission of the eighth count to the jury and whether the agent driving the truck had, under our decisions, departed from the line of duties of his employment in such wise as the master was not liable for the conduct of his servant at the time of the collision and for the damages claimed as a result thereof.
The eighth count of the complaint, to which demurrers were overruled, sought damages for injuries as a proximate consequence of an employee's negligence while acting within the line and scope of his authority and also sought damages for injuries as a proximate consequence of said employee's negligence, was alleged to be an incompetent driver, of which facts defendants, Bell and Bell, had been informed, "or were charged with the duty which would have led them to inform themselves of the fact that said A. J. Holbrook (the driver) was a careless, indifferent, heedless, reckless and negligent driver, * * * and yet with information of said facts * * * or charged with the duty to ascertain said facts" the defendants were alleged to have permitted the use of said truck by said Holbrook.
Without passing on the ruling on demurrer, it is sufficient to say that the evidence was insufficient to warrant the submission of that count to the jury. The court should have given defendants' written general affirmative charge denominated as C.
It is established in this jurisdiction that where there is an abandonment of the master's business for personal reasons of the servant or agent in question, the employment is suspended and the master is not liable for the negligence of such agent or servant during such suspended employment and during the time of his departure from the master's business. Each case must be ruled by its "own peculiar" or particular facts, and when a servant has abandoned his employment by the master (Moore-Handley Hardware Co. v. Williams,
In Mobile Pure Milk Co. v. Coleman,
"If an employee, whose work for the time is at the plant of his company, lays down his work, and takes his company's car on a trip solely his own, which includes a trip for personal accommodation of a third person, and after completing his errand returns to his work at the plant, the entire trip, going and returning, is without the line and scope of his employment, and his employer is not liable for negligence in operation causing personal injury.
"This is the logical view, supported in principle by our own cases, also by text-writers, and the weight of authority. Hill v. Decatur Ice Coal Co.,
This rule was approved in Koonce v. Craft,
In Rooks v. Swift Co.,
In Blackmon v. Starling,
In Mobile Pure Milk Co. v. Coleman,
In Edwards v. Earnest,
"In Healey v. Cockrill [
" 'In cases where the deviation is slight and not unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master's business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury or other trier of such questions.'
"* * * The driver in the instant case had delivered the sugar to his mother, and was then on Twenty First street in the direction of and on his way to defendant's shop, with the inner tubes that he had been sent for, when the accident occurred. From the evidence here outlined, upon this feature of the case the jury could infer that, notwithstanding the deviation from the master's business, the object sought thereby had been accomplished, and the driver had resumed the business of the master, and at the time of the injury was acting within the line and scope of his employment. * * *"
The same case is reported also in
See, also, Perfection Mattress Spring Co. v. Windham,
"In Southwest Dairy Products Co. v. De Frates (Tex.) * * * wherein a servant had departed from his duties in order to drive home for his supper, and an accident occurred while he was returning to take up his duties again, the court declared it was unable to adopt the proposition that when a servant has completed the purpose for which he departed from his master's business and is returning to resume the duties of his employment, he is, while so returning, engaged in the master's business and that the master is therefore liable for injuries caused by his negligence on the return trip. The court said that the master's liability did not rest alone upon the purpose in the mind of the servant, and that the return was referable to and an incident of the departure. Moreover, the fact that the servant owed the duty to the master of returning the car and resuming his employment, and while returning to the zone of his employment was discharging that duty, was declared not to fix liability against the master.
"Moreover, in the following cases, where a trip was from its inception entirely in the interests of the servant, the view has been taken that neither in the going nor in the returning was the driver acting within the scope of his employment so as to render the owner liable:
"Alabama. — See also Mobile Pure Milk Co. v. Coleman, (1935)
The same rule has been declared by the Supreme Courts of Connecticut, Georgia, Louisiana, Michigan, Minnesota, Nebraska and Texas. *186
In the recent case of Paul Daniel v. Sanford Jones, supra, the accident in question occurred while the agent and the "pick up" automobile were engaged in the master's business on the return from the house where he had "picked up and checked up" to the Ligon house where the other agent of the defendant so engaged was resuming his duties on the truck.
In Grimes v. Fulmer,
"The rule with reference to the ownership of the car raising an administrative presumption that it was being operated in the owner's business is accurately stated in the case of Mobile Pure Milk Co. v. Coleman,
When all the cases in this jurisdiction are understood, under the peculiar facts of each case, they are not in conflict.
By the clear, undisputed and convincing testimony in the case at bar, the driver (Holbrook) had abandoned his employer's business, and at the time of the accident had not resumed the employer's business, and had not reached a point where he could resume the same, and was not on any circuitous route from Selma to Greensboro. On the contrary, he was on a road where he had no right to be and where there was no business to be attended to for his employers. The fact that the driver, before leaving his father's and mother's home, examined the lights on the truck, did not constitute a return to the master's business from which Holbrook had departed sometime prior thereto. He was under a duty to examine the lights on the truck because he was operating the same on a highway of Alabama. That is, it would have been his duty to examine the lights on any automobile or truck that he might have in his possession before going on an Alabama Highway, irrespective of his employment. The fact that he looked at his lights at his father's house, although he had instructions from his master to check the lights, did not reinstate him in that employment, any more than the further fact that he drove with oil in the engine, gasoline in the tank or guiding the steering wheel. These are matters incident to driving a motor vehicle and if such matters reinstated his employment, it would be difficult to conceive of a case where a driver could possibly abandon his employment by pursuing a mission of his own so long as he exercised such proper duties incident to driving a truck. Such matters were not carrying out his contract of hire and were not incident thereto; they were merely incident to the proper care of the truck which it was his duty, under the law, in his return from the place where and when, without permission, he left his master's employment.
It may be said further that the mere fact that the driver proposed to proceed on to Selma after he arrived at Greensboro and delivered the freight to Bell, as it was his duty to do, no more of itself reinstated him into his master's employment than the fact he proposed to return to Selma, even while he was proceeding toward his father's house on his personal mission from Greensboro. The line of reasoning that goes through the cases is that when the action of the driver is in execution of a contract of hire, although he executes the same by methods or ways of his own and although he adopts a different or circuitous route, then the acts are in the line and scope of his authority, but where there has been an abandonment and the driver must return to the place of such abandonment before he can commence carrying out what he was hired to do, then to such extent the employment is suspended, both on the outgoing andreturn trip. Such is the result in this case, because the duty to return the truck with the freight thereon is an incident to the wrong of abandoning the path of duty in the first place.
At the time of the collision, Holbrook was in the process of going back to Greensboro with the same truck and the same freight that he left with in the first place, and he was about a mile out from the center of town on a road not within the permit of the owner of the truck. The principle has been clearly stated in Dockweiler v. American Piano Co.,
In Southwest Dairy Products Co. v. DeFrates, supra [
The recent case of Parrott et al. v. Kantor et al.,
"Blashfield, Permanent Edition, in Section 3051, Vol. 5, page 212, speaking with respect to returning from deviation, says: 'The majority rule, and probably the better view, is that the relation of master and servant is not restored until he has returned to the place where the deviation occurred, or to a corresponding place, some place where in the performance of his duty he should be,' citing decisions of courts in many states. In Humphrey v. Hogan, 104 S.W.2d 767, the Court of Appeals of Missouri says that the weight of authority is well stated in this section. See also Annotations 22 A.L.R. 1414, 45 A.L.R. 487, 68 A.L.R. 1056, 80 A.L.R. 728.
"In Graves v. Utica Candy Co.,
"In Virginia Ice Freezing Corp. v. Coffin,
The affirmative charge, duly requested by the defendant in writing on this phase of the case, should have been given. In the refusal thereof there was reversible error. It results that the judgment of the circuit court should be and it is reversed and remanded.
Reversed and remanded.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.
GARDNER, C. J., and BROWN, J., dissent in part.
KNIGHT, J., not sitting.
Dissenting Opinion
I concur with Mr. Justice THOMAS in holding that the defendant was due the affirmative charge as to the issues presented by count 8 of the complaint, but am of opinion *188 that the evidence presented a jury question as to whether or not Holbrook, the driver of the truck, was acting within the line and scope of his employment at the time of the collision with plaintiff's automobile.
The evidence is without dispute that the defendants' truck was used by them as common carriers of freight; that the driver was the regularly employed driver of said truck and on regular duty; that said truck at the time was loaded with a thousand pounds of freight; that the route of the truck, as indicated by the permit, of necessity and convenience, was from Selma, Alabama, via Uniontown and to Greensboro and return. Nevertheless there was evidence showing that up to the time of the collision in question the defendants as carriers had been delivering freight to merchants in Sawyerville traveling the highway on which the truck was moving at the time of the collision. The evidence is also without dispute that Holbrook had carried the truck past Greensboro on the Akron and Sawyerville road to his father's home where he went to get eggs and buttermilk for his own use, a distance of two and one-half miles; or ten minutes' driving; that he had gotten the eggs and milk and was on his return to Selma, when the collision occurred in the "edge of Greensboro" near the old Hobson home.
Holbrook, the driver, testified: "I left my father's house and was going to Greensboro, pick up my helper and then going on to Selma. The accident occurred on the edge of Greensboro. I left Greensboro about six and stopped at my brother's filling station a few minutes, where I left my helper and I was to pick him up after I returned from my father's house and then go on to Selma. I had some freight on my truck for Mr. Huggins in Uniontown and I was going to carry it with me because I couldn't deliver it, for his store was closed. I was going to take that freight back to Mr. Bell so that it could be delivered the next day."
There was also evidence going to show that at the time of the collision the truck was moving at the rate of from thirty-five to sixty miles per hour at night, holding the inside of the curve on the left of the highway. Plaintiff's automobile was smashed and he was seriously and permanently injured.
In Blackmon v. Starling,
This doctrine and its application was approved in Mobile Pure Milk Co. v. Coleman,
GARDNER, C. J., concurs in the foregoing.
