53 So. 994 | Ala. | 1910
The opinion in this cause Avas prepared by Justice Denson, before his, retirement as Associate Justice, and, having been adopted in consultation, it is here announced as the opinion of the court:
This is an action, by an employee against his employer, to recover damages alleged to have accrued to plaintiff on account of a personal injury suffered by him, as alleged in each count of the complaint, Avhile plaintiff was “in the employ of the defendant and engaged in the discharge of his duties as such employee.” While the proof shows that plaintiff was an employee of the defendant, it at the same time shows without conflict that, at the time plaintiff received the injuries complained of, he was not engaged in the discharge of any duty imposed upon him as an employee, but, to the contrary, was on his own business, and not on that of the defendant. In other words, plaintiff had obtained the consent of the superior to take the lever car, which plaintiff, as foreman of a section, used on his section, and to go to Oalunan, on defendant’s road, for the purpose of getting his (plaintiff’s) checks for his labor performed during a previous month for the defendant, Avhich checks had been properly sent to Oakman for deliArery to the plaintiff.
Noav, in this state of the pleading and proof, it is clear that whatever right the plaintiff might have had to maintain an action against the defendant, predicated upon the theory that he was on defendant’s track as a licensee at the time the injury occurred, yet there is a fatal variance between the case alleged and that proved; and for this reason, without noticing others, the affirmative charge, with hypothesis, as it was requested bv the defendant, was properly given. — Pioneer M. & M. Co. v. Talley. 152 Ala. 162, 43 South. 800, 12 L. R. A. N. S.) 861; A. G. S. R. Co. v. McWhorter, 156
Affirmed.
