121 So. 710 | Ala. | 1929
Plaintiff's intestate is alleged to have died as the result of an automobile accident. The automobile was being driven by one Lawrence and the accident is alleged to have been the result of his negligence. Lawrence was engaged to drive the car by one Beckham under the following circumstances: Appellant had issued a policy of insurance against the theft of an automobile. It is claimed that the car was stolen, and located at Jasper, some distance away. It is claimed that the owner of the car was Mrs. Beckham, and her husband procured one Findlay, the automobile dealer, to telephone an alleged general agent of appellant advising him of the theft and location of the car, and asking for instructions; that plaintiff's said agent told Findlay "to tell Beckham to go and get the car; that he would pay the expenses to get it and if necessary pay a $25.00 reward to the sheriff; to get the car and bring it back to Birmingham [where plaintiff's alleged agent had his office], and let him make an adjustment on it and make settlement with him for the damage; * * * he said to get the car and he would pay all expenses, to get the car and bring it back to Birmingham, so that he could make an adjustment on it and he would pay a $25.00 reward. He told me to bring it to his office, and get all the necessary help that was needed or expenses." The foregoing is the aspect of the evidence most favorable to appellee.
Appellee claims that Beckham, though an experienced automobile driver, procured Lawrence, a taxi driver, to drive for him, because he did not know the road to Jasper, and had never driven in the traffic of Birmingham, through which it was necessary to go; that he procured decedent to go because the latter was familiar with the people and conditions at Jasper and could help him get the car where it was "tied up"; that he carried his son to drive his car back, though he himself could drive, and another youth as a companion to young Beckham. On this trip to and near Jasper, going for the stolen car, the accident occurred while Lawrence was driving Beckham's car, causing the death of plaintiff's intestate. It was claimed that under such circumstances Lawrence was appellant's agent, and for the death of plaintiff's intestate, due to the negligence of Lawrence, plaintiff is liable on the doctrine of respondeat superior.
Appellant claims it was due the affirmative charge for numerous reasons: One is that under such circumstances the relation did not extend beyond that of an independent contractor, if any relation at all existed between appellant and Beckham, and that it was not that of master and servant. Of course, if Beckham was an independent contractor, his employment of Lawrence did not make appellant the master as to Lawrence, and therefore there did not exist the facts calling for the principle of respondeat superior.
This court has had occasion frequently to point out the distinguishing characteristics between the relation of an independent contractor and that of a servant. A clear and concise statement of such distinction is made in our case of Republic I. S. Co. v. McLaughlin,
An application of this test has been made in numerous cases, with the result of holding that the relation of independent contractor, and not servant, existed, where the person was city salesman on commissions, using his own car (Aldrich v. Tyler Groc. Co.,
It is apparent that the evidence in this case, taken most strongly for appellee, does not show that the means, manner, method, time, or any other detail in going and getting the car were suggested or directed or retained by or for appellant, nor were under his control, or that under the arrangement the appellant took any note of or made any reservation of the right to control any such matters. Beckham was thereby left to his own judgment and discretion, when and how he should accomplish the result, and what aid, if any, he should secure. It was not an instance where one particular service could be done only one way with no detail of performance to be left to the discretion of the person doing the service. Beckham perhaps could have gone on the train without assistance. He used his own car in making the trip, but the arrangement did not make any provision for the use of his or any other car.
We think the case of Western Union Tel. Co. v. Morrison,
But assuming that Beckham was appellant's agent in this connection, with authority to employ servants for it, such authority extended equally to engage decedent as well as Lawrence, the alleged negligent car driver, in promotion of the common enterprise. This situation has many features similar to the facts in the case of Reed v. Ridout's Ambulance,
Appellee's counsel in brief state that: "Mr. Beckham arranged with Wess Findlay (deceased) to accompany him to Jasper, and there to aid in dealing with the officials and other persons who held the car. For these services Beckham agreed to pay Findlay's expenses on the trip." There was no pretense of authority to invite any one on the trip except the "necessary help." It is argued that he thereby was invited to be and become a part of such "help." There is no contention that he was going on other business for appellant. He was therefore in that aspect of the case a servant along with other servants of appellant (if any of them were such) to accomplish a specific result. If he was not a servant, he was a guest, and there is no authority claimed to invite a guest who was not a "necessary help," and therefore, if a guest and not a help, we think he was the guest of Beckham, not appellant. Southern R. Co. v. Carlton (Ala. Sup.)
The complaint alleged that decedent was a passenger in the car at defendant's invitation, and engaged in an errand for defendant. The only errand attempted to be shown was service in furtherance of the enterprise in which the alleged negligent driver of the car was also engaged, to wit, the recovery of *196
the alleged stolen automobile. The fact that each was to render a different service in accomplishing the result does not prevent the fellow-servant doctrine from applying, when decedent by his employment was brought into such close relations with the services rendered by Lawrence that the danger from the operations of Lawrence constituted an ordinary danger of the service in which decedent was engaged. Boggs v. Alabama C. C. I. Co.,
We think the affirmative charge was due appellant, and that therefore it is not necessary to consider other questions raised on this appeal.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.