98 So. 16 | Ala. | 1923
The suit was for personal injury sustained in collision with an automobile. The plaintiff had no direction or control over the driving of the vehicle in which she was a guest at the time of her injury. Birmingham Southern R. Co. v. Harrison,
The record does not show a motion for a new trial, and the scintilla rule of evidence will be applied to the giving of the general affirmative charge. Penticost v. Massey,
In McMillan v. Aiken,
Recent authorities of this court dealing with the liability of the master for the negligent acts of the servant in driving the master's automobile or motor truck are Penticost v. Massey,
In Edwards v. Earnest,
"Where defendant's truck driver, sent a distance of four blocks to get some tires, got them, and then went out of his way to buy sugar and take it to his mother, and, while returning to his employer's place of business, injured plaintiff, held, that the question whether, at the time of the accident, he was within the scope of his employment, was for the jury." Headnote 1.
The court, in that case, said:
"The fact that this detour was made to serve the driver's own purpose — a purpose wholly unauthorized by appellant — did not itself conclusively operate to neutralize the effect of the established fact that, throughout the entire movement of the truck from Perry's place to the scene of the injury, the employee was engaged in transporting the tires for which he was sent. Notwithstanding the unauthorized detour, relatively great as it was from a route the employee would undoubtedly have taken but for his purpose to serve his own interest, the fact remained that throughout the movement from Perry's place, with the tires in the truck, the employee was serving, though disobediently in the course pursued, the object of his superior's direction to bring the tires from Perry's to appellant's place of business. * * * It would, under the evidence, have involved invasion of the jury's province to have instructed the jury, as appellant sought to have done, either that the driver's conduct and course had effected to suspend his relation to his employer at any time between Perry's place, where he loaded the tires, and the point where plaintiff was injured, or that his relation to his employment had not been resumed until his route intersected the more immediate *366 route he would or should have taken in going from Perry's to the appellant's place of business."
In the cases of Penticost v. Massey, and Dowdell v. Beasley, supra, it was declared that proof of defendant's ownership of the automobile causing the injury authorized the rebuttable presumption that the driver at the time was employed by that owner, and was acting within the scope of his employment; that this presumption might be overcome by "undisputed" evidence that is "clear and convincing," and when such is the rebuttal of that presumption "the defendant is entitled to the general affirmative charge properly requested." Ford v. Hankins,
In the instant case the ownership of the car and general agency of the driver are not controverted; the defense being that the agent had gone aside from, or out of the way of, the discharge of the master's business when the collision occurred, with the proximate injury, for which complaint was made.
There was evidence from which the jury might infer that the driver was instructed by his immediate superior to take the car after business closing hours and drive it to the garage; there are divergent inferences that might be drawn from the evidence of two different places or garages where the car was to have been housed for the night. A tendency of defendant's evidence was that its agent directed the car to be taken to McCoy's garage on the date of the accident, which was October 13, 1920; and there was a tendency of evidence introduced by plaintiff that said garage was not erected until December 20 or 21, 1920. There were further divergent inferences that might be drawn from the evidence; if the driver had gone aside from the master's business in carrying its stenographer to her home on the night in question, whether or not he had returned to the master's service (within the rule declared in Edwards v. Earnest,
The possession of defendant's car, and its operation by its servant by direction of the master, raised the presumption of the relation of master and servant at the time, and cast on defendant the burden to rebut the same by evidence that "is undisputed, clear, and convincing." Ford v. Hankins,
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.