61 So. 37 | Ala. Ct. App. | 1913
It is not questioned that the ap-pellee (the plaintiff below) sustained injuries in person and property as the result of an automobile, which belonged to the appellant, colliding with the wagon in which the appellee was riding, and that the evidence was such as to make it a question for the jury whether the collision and the consequent injuries were attributable to the negligence of the person who was in charge of and operating the automobile. The appellant bases his claim to exemption from liability for the wrong upon the ground that he did not at that time bear any such relation to the person who was operating, the automobile as to render him responsible for that person’s negligent operation of the machine. The following facts were disclosed by the evidence: About 11 o’clock in the night before the morning of the collision the defendant’s automobile got out of order while he was riding in it and stopped in a street in the city of Birmingham some distance from the Bonita Theater, at which place the appellant was engaged in the business of running a moving picture show. When this happened the appellant went to the theater, and, accompanied by a. Mr. Joseph, who was an electrician employed by him as an operator of a moving picture machine, and two other theatre employees, returned to the place at which he
It is mentioned in the argument of the counsel for the appellant, as having some bearing upon the question of his liability, that Joseph was employed and paid to run a moving picture machine, and that it was not a part of his duty as such employee to repair or operate the appellant’s automobile. If at the time of the collision Joseph’s use of the machine was incidental to the service in reference to it which he had undertaken for the appellant, the fact that that service was rendered gratuitously would not enable the appellant to escape liability for Joseph’s negligence. — Cooley on Torts (3d Ed.) p. 1007. But there Avas evidence tending to prove that
It is not denied that the contention of the appellant would have to be sustained if the necessary inference from the evidence in the case was that at the time of the collision the person in charge of the automobile was in no manner engaged in rendering the service for the performance of which its custody had been intrusted to him, but, without authority from its owner, was using it for some purpose of his own having no relation to such service. — Henderson-Mizell Mercantile Co. v. Chapman, 3 Ala. App. 296, 57 South. 82. On the other hand, that contention cannot be sustained if there was evidence having a tendency to prove that the person in charge of the automobile was then running it for a purpose not foreign to the task which had been assigned to him by its owner, so that it properly could be said that he was then acting within the scope or range of his employment. The inquiry then is: Was there such evidence?
The extent of Joseph’s authority to operate the automobile was largely a matter of inference or implication from the occasion and circumstances of its- being left in his charge. At that time there was some undiscovered trouble Avith the machine Avhich prevented the running of it. The effort to locate the trouble had been unsuccessful. It cannot be said that the jury Avould not have been Avarranted in inferring from the circumstances attending the leaving of the machine in Joseph’s charge that he Avas expected by its owner, the appellant, to locate the trouble, to apply a remedy, and to see that Avhat he did to remove the trouble Avas effectual and successful before leaving the machine at the place mentioned by its owner, and that it Avas left to his judgment and discretion to choose the means to be adopted
When, under the evidence in a case, it is a matter of doubtful implication whether the use to which one’s property was being put by his agent, at the time when injury to a third person resulted from its negligent use, Avas one incidental to the exercise of an authority conferred upon the agent or was a use of the property by the agent for some private purpose of his own having-no relation to the execution of his agency, it is pertinent to inquire into the purposes or intent by which the
As there was evidence in the case from which the jury might have inferred that at the time of the collision AAdiich resulted in injury to the appellee the person in charge of the automobile had not abandoned the duties of his employment, but was still using the machine in furtherance of the service which he had undertaken for his employer, it cannot be said that there was an absence of evidence to support a finding that he was then acting within the scope of his employment. Such a finding, coupled with the further finding that there was negligence and injury as alleged, would justify a verdict in favor of the plaintiff. — Gilliam v. South & Worth Ala. R. Co., 70 Ala. 268; Williams v. Hendricks, 115 Ala. 277, 22 South. 439, 41 L. R. A. 650, 67 Am. St.
Affirmed.