Barker v. Dairymen's Milk Products Co.

• Decision Date: 07 April 1921
• Docket Number: 7 Div. 173
• Citation: 205 Ala. 470,88 So. 588
• Court: Alabama Supreme Court
• Parties: BARKER v. DAIRYMEN'S MILK PRODUCTS CO.

88 So. 588

205 Ala. 470

BARKER v. DAIRYMEN'S MILK PRODUCTS CO.

7 Div. 173

Supreme Court of Alabama

April 7, 1921

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by Leonard Bell Barker, by next friend, against the Dairymen's Milk Products Company, for damages for injury alleged to have been inflicted by one of defendant's trucks. On account of rulings on the pleading, plaintiff took a nonsuit and appealed. Affirmed.

Ross Blackmon and J.B. Holman, Jr., both of Anniston, for appellant.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

GARDNER J.

The issues presented by the pleadings will sufficiently appear in the statement of the case. The complaint alleges that plaintiff, a small boy, was invited or induced by defendant's chauffeur to ride upon the defendant's truck, which the servant was then operating in the delivery of merchandise for the defendant, and that he fell therefrom receiving injuries as the result of the negligence of the chauffeur. The defense set up is that the chauffeur, in inviting the plaintiff to ride upon the truck, was acting without the line and scope of his authority, and without the defendant's knowledge or consent or authority, either express or implied, and without any necessity therefor. Speaking to the principle of law applicable to cases of this character, this court, in Gilliam v. S. & N.A.R Co., 70 Ala. 270, said:

"If the agent, while acting within the range of the authority of his employment, do an act injurious to another, either through negligence, wantonness, or intention, then for such abuse of the authority conferred upon him, or implied in his employment, the master or employer is responsible in damages to the person thus injured. But if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master or employer is not."

And again, in Palos Coal Co. v. Benson, 145 Ala. 664, 39 So. 727, is the following:

"The act must be, not only 'within the scope of his employment,' but also 'committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer.' "

Many of the cases bearing upon this question, and applying the principle of respondeat superior, will be found cited in the recent cases of Wells v. Henderson Land & Lbr. Co., 200 Ala. 262, 76 So. 28, L.R.A.1918A, 115, and Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516; but we deem a review of them here unnecessary.

We are of the opinion that the case of Powers v. Williamson, 189 Ala. 600, 66 So. 585, is more nearly in point than any other decisions of this court, and in principle, in our opinion, is decisive of this appeal. The plaintiff in that case became an occupant of the car upon the invitation of the driver, and not of the owner [the defendant], and it was held that, should it be conceded that the driver was at the time of the accident engaged in the business of the defendant, yet nevertheless, as to the plaintiff, the driver was his own master, and did not as to her occupy the position of servant of the defendant. So, in the instant case, under the pleadings, the chauffeur, in inviting the plaintiff to ride upon the truck, was acting for his own convenience and pleasure, and in such an act had stepped aside from the line and scope of his employment, for which conduct the master would not be liable.

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