87 So. 18 | Ala. | 1920
On a former appeal in this case (Dowdell et al. v. Beasley,
The law is thoroughly well settled that "the owner of an automobile is not liable to one who is injured by the negligence of his chauffeur while operating the machine without his knowledge or permission, and for a purpose other than that for which lie was employed, as where a driver is on an errand personal to himself, or is making a detour *131 for his own purposes." 2 Rawle C. L. 1199, § 33.
On the second trial the evidence needed to overcome the presumption that the chauffeur was acting within the course of his employment seems to have been supplied by defendants; and, taken as a whole, it clearly and comprehensively rebuts and excludes the implication in question. Unquestionably the chauffeur had turned aside from his duties and instructions, and gone upon a personal mission of his own in no way related to the business or service of his masters, or to the care and control of the car as its driver. And while he was proceeding to that destination, at a point quite remote from the garage to which he had been sent for gasoline, with instructions to return directly to defendants' place of business, he ran upon and injured plaintiff. In such a case the authorities all agree, in line with the settled principles of the law of respondeat superior, that the master cannot be held liable for the wrongful acts of his servant. Slater v. Advance Thresher Co.,
Of course a mere deviation from the master's instructions, as by making a detour from the direct or usual route of travel (Long v. Nute,
There is nothing in the evidence here presented, apart from the initial presumption referred to, tending in any way to bring this act of the chauffeur within the general course of his employment, but, on the contrary, the clear and undisputed evidence is to the contrary.
The chauffeur's employment was to drive the car and take care of it. He had no authority to go on a journey to see an unknown man who had expressed a desire to see him at a designated place. In doing so he was presumptively serving himself, and not his masters, and the evidence does not permit a conjecture, much less an inference, that the unknown man had any connection with, or relation to, the business of the masters, or that, if he had, the chauffeur had any authority to deal with him in the premises.
The case of Penticost v. Massey,
The case of Wheeler v. McGuire,
It results from these considerations that the general affirmative charge should have been given for defendants as requested by them in writing, and the error of its refusal must cause a reversal of the judgment, and remandment of the cause for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and BROWN, JJ., concur.