Aetna Explosives Co. v. Schaeffer

• Decision Date: 01 February 1923
• Docket Number: 6 Div. 663
• Citation: 95 So. 351,209 Ala. 77
• Parties: ÆTNA EXPLOSIVES CO. v. SCHAEFFER.
• Court: Alabama Supreme Court

95 So. 351

209 Ala. 77

ÆTNA EXPLOSIVES CO. v. SCHAEFFER.

6 Div. 663

Supreme Court of Alabama

February 1, 1923

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action by D. L. Schaeffer, by his next friend, against Ætna Explosives Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Miller Sayre, and McClellan, JJ., dissenting in part.

Smith Wilkinson & Smith, of Birmingham, for appellant.

Jno. W Altman and J. K. Taylor, both of Birmingham, for appellee.

MILLER J.

This is a suit by D. L. Schaeffer, a minor about four years of age by his next friend, Henry Schaeffer, Jr., against the Ætna Explosives Company, a corporation, for damages for personal injuries sustained by him, which he claims were caused by defendant. The jury returned a verdict for the plaintiff, judgment was rendered thereon by the court, and from it the defendant appeals.

There was only one count, No. 3, submitted by the court to the jury. It avers the plaintiff, a boy under seven years of age, was in a public highway, and was run over or against by a wagon in the charge and operation of a servant or agent of defendant, named John McKnight, while he was acting within the line and scope of his service or agency as such; and it charges plaintiff's injuries were caused as a proximate result of the negligence of said servant or agent, John McKnight, while acting within the line and scope of his service or agency as such in negligently operating said wagon.

The defendant pleaded not guilty, and denied each and every allegation therein contained. The general affirmative charge, with hypothesis, in writing, requested in its favor by the defendant, was refused by the court.

The vital issues presented by the pleading and evidence were two: Was John McKnight employed by or an agent or servant of the defendant on the day and at the time the plaintiff was injured, and was he at the time acting within the line and scope of his employment? Was John McKnight guilty of negligence on the occasion complained of, which caused as a proximate result the injury to the plaintiff? The plaintiff affirms and the defendant denies these alleged facts. The burden of each rests on the plaintiff. If the undisputed evidence and the reasonable inferences therefrom show that John McKnight was not an agent or servant or in the service or employment of the defendant at the time the plaintiff was injured, then the affirmative charge with hypothesis, requested by the defendant, should have been given by the court, and it will not be necessary for us then to consider the other question or the many other errors assigned and insisted on by the appellant. So we will consider first that question and error assigned.

It is undisputed that the plaintiff was a child under seven years of age, playing in the public highway when injured on April 13, 1921, by being struck by the brake beam over the hind wheel of the wagon or by the hind wheel of the wagon running over him or both. The injuries were painful and serious, but not necessarily permanent. The wagon and mules belonged to the defendant; John McKnight had been an employé of the defendant, and drove a wagon for it for five or six years previous to this time, and the wagon at the time of the injury had grass sod in it, and was driven by John McKnight. Henry Schaeffer, father of plaintiff and his witness, testified that John McKnight was working for the Ætna Explosives Company on the day and at the time his son was hurt. On cross-examination he testified:

"I do not know whether that wagon was loaded or not. When I seen it, he was on his way back to the powder mill; I don't know what he did in the meantime. I do not know of my own knowledge where John McKnight was taking that stuff on the wagon; I do not know where he got that stuff; I do not know what he was going to do with it either. I do not know who paid John McKnight for that trip. I was at the mines when the boy come and brought me word that the boy was run over."

The evidence for the defense is clear, positive, and undisputed that John McKnight was not working for the defendant on April 13, 1922, when plaintiff was injured; he was hired by, working for, and paid by R. S. McGee to haul this sod and grass to the home of R. S. McGee when the injury occurred. The defendant has no interest in the property where the grass sod was being hauled; the defendant loaned the wagon and team to R. S. McGee, and McGee, and not defendant, hired, and paid McKnight to haul it and to drive the wagon. John McKnight did not work for and was not agent for nor employed by the defendant from the 7th or 8th of April to the 25th of April, 1921. The home of McGee where the sod was being hauled was in North Birmingham, and was not on premises of defendant. The plant of defendant was not in operation, but was shut down at the time of the injury; it was shut down from April 7 or 8 to April 25, 1921, and during this time John McKnight was not in its employment.

When the plaintiff proves the wagon and team belonged to the defendant, and that John McKnight, who was driving it at the time of the injury, had been a driver for and in the employment of the defendant for five or six years prior to the time of the injury, then there will be a presumption of law raised from this evidence that John McKnight was an employé or servant of the defendant at the time of the injury, and was acting in the line and scope of his employment. If this presumption of law is not overcome by some evidence to the contrary, then that issue should be determined in favor of the plaintiff. However, this presumption of law is only prima facie, and can be overcome by evidence; and, if the evidence is strong, clear, and undisputed, then the defendant would be entitled to the general affirmative charge, with hypothesis, when requested in writing. Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Massey v. Pentecost, 206 Ala. 414, 90 So. 866.

It is true Henry Schaeffer testified that John McKnight was working for the defendant on the day and at the time his son, the plaintiff, was hurt by the wagon; but the evidence shows Henry Schaeffer was at the time of the injury working in the mine, did not see it, did not know of his own knowledge whether the wagon was loaded or not, did not know where the wagon was going with the load, and what he was going to do with it; and did not know who paid John McKnight for that trip. One or two other witnesses for the plaintiff were...