Bell v. Martin

• Decision Date: 17 April 1941
• Docket Number: 2 Div. 170.
• Citation: 1 So.2d 906,241 Ala. 182
• Parties: BELL et al. v. MARTIN.
• Court: Alabama Supreme Court

1 So.2d 906

241 Ala. 182

BELL et al. v. MARTIN.

2 Div. 170.

Supreme Court of Alabama

April 17, 1941

Application for Rehearsing Withdrawn May 14, 1941.

Appeal from Circuit Court, Hale County; John Miller, Judge.

Pitts & Pitts, of Selma, and G.E. Sledge, of Greensboro, for appellants.

W.R Withers and W.P. Gewin, both of Greensboro, for appellee.

THOMAS, Justice.

The appeal is from judgment for damages, resulting from an automobile collision. The case was duly presented in oral argument and in brief of counsel. The questions of moment for decision are whether there was evidence to warrant the submission of the eighth count to the jury and whether the agent driving the truck had, under our decisions, departed from the line of duties of his employment in such wise as the master was not liable for the conduct of his servant at the time of the collision and for the damages claimed as a result thereof.

The eighth count of the complaint, to which demurrers were overruled, sought damages for injuries as a proximate consequence of an employee's negligence while acting within the line and scope of his authority and also sought damages for injuries as a proximate consequence of said employee's negligence, was alleged to be an incompetent driver, of which facts defendants, Bell and Bell had been informed, "or were charged with the duty which would have led them to inform themselves of the fact that said A.J. Holbrook (the driver) was a careless, indifferent heedless, reckless and negligent driver, * * * and yet with information of said facts * * * or charged with the duty to ascertain said facts" the defendants were alleged to have permitted the use of said truck by said Holbrook.

Without passing on the ruling on demurrer, it is sufficient to say that the evidence was insufficient to warrant the submission of that count to the jury. The court should have given defendants' written general affirmative charge denominated as C.

It is established in this jurisdiction that where there is an abandonment of the master's business for personal reasons of the servant or agent in question, the employment is suspended and the master is not liable for the negligence of such agent or servant during such suspended employment and during the time of his departure from the master's business. Each case must be ruled by its "own peculiar" or particular facts, and when a servant has abandoned his employment by the master (Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757) the mere fact that he is returning thereto, does not of itself reinstate the servant, agent or agency in his master's employment and establish the engaging in the master's business so as to subject the master to liability and for damages resulting after the departure and before the return is accomplished as of fact.

In Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829, 830, it is said:

"If an employee, whose work for the time is at the plant of his company, lays down his work, and takes his company's car on a trip solely his own, which includes a trip for personal accommodation of a third person, and after completing his errand returns to his work at the plant, the entire trip, going and returning, is without the line and scope of his employment, and his employer is not liable for negligence in operation causing personal injury.

"This is the logical view, supported in principle by our own cases, also by textwriters, and the weight of authority. Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338; Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Huddy, Cyc. Auto. Law (9th Ed.) Vol. 7-8, § 96, p. 261; 2 Berry, Automobiles (6th Ed.) § 1369; Fletcher v. Meredith et al., 148 Md. 580, 129 A. 795, 45 A.L.R. 474."

This rule was approved in Koonce v. Craft, 234 Ala. 278, 174 So. 478, 479, when the writer said: "The decision in Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338, is to the contrary, holding that 'In action for injuries on being struck by automobile of defendant while being driven by defendant's employee returning from his home to defendant's plant, evidence held not to establish that automobile was being used in furtherance of defendant's interests, even though warranting inference that automobile was used with knowledge or consent of defendant, and hence no recovery could be had against defendant.' * * * "

In Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16, there was conflict in the evidence as to which of defendant's garages the driver was proceeding to when the accident occurred and such matter presented a jury question as to whether or not he was in the master's business when the accident occurred.

In Blackmon v. Starling, 222 Ala. 87, 130 So. 782, 22 A.L.R. 1387, the agent and agency on the return to the garage as instructed or as to delivery of the mattress on the truck before closing time was held to present adverse inferences and made a jury question.

In Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829, 830, the following observation is made of the above case: "The case of Blackmon v. Starling, 222 Ala. 87, 130 So. 782, holds nothing to the contrary. The rule there stated, as its language imports, has application to cases where the car is being operated in the employer's business, but the driver deviates therefrom upon a personal mission, then returns to the sphere of the employer's business. In such case, it often becomes a jury question whether and to what extent there has been an abandonment of the employer's business, whether both the personal mission and that for the employer are being performed concurrently, and, if not, just at what point on the trip the driver had returned to the work of his employment. This is illustrated by the facts of the Blackmon case, and others there cited."

In Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 730, 22 A.L.R. 1387, we quote the following:

"In Healey v. Cockrill [133 Ark. 327, 202 S.W. 229, L.R.A.1918D, 115], supra, the following quotation from Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L.R.A. 161, 38 Am.St.Rep. 361, there designated as the leading case upon the subject, is quoted with approval:

" 'In cases where the deviation is slight and not unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master's business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury or other trier of such questions.'

" * * * The driver in the instant case had delivered the sugar to his mother, and was then on Twenty First street in the direction of and on his way to defendant's shop, with the inner tubes that he had been sent for, when the accident occurred. From the evidence here outlined, upon this feature of the case the jury could infer that, notwithstanding the deviation from the master's business, the object sought thereby had been accomplished, and the driver had resumed the business of the master, and at the time of the injury was acting within the line and scope of his employment. * * * "

The same case is reported also in 208 Ala. 539, 94 So. 598.

See, also, Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6; Chandler v. Owens, 235 Ala. 356, 179 So. 256; Slaughter v. Murphy, 239 Ala. 260, 194 So. 649; Daniel v. Jones, Ala.Sup., 200 So. 551. The earlier of the above decisions were annotated in 122 A.L.R. 854, 878 when the holding in Southwest Dairy Products Co. v. De Frates, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854, is the leading case. In speaking of this case, it is said :

"In Southwest Dairy Products Co. v. De Frates (Tex.) * * * wherein a servant had departed from his duties in order to drive home for his supper, and an accident occurred while he was returning to take up his duties again, the court declared it was unable to adopt the proposition that when a servant has completed the purpose for which he departed from his master's business and is returning to resume the duties of his employment, he is, while so returning, engaged in the master's business and that the master is therefore liable for injuries caused by his negligence on the return trip. The court said that the master's liability did not rest alone upon the purpose in the mind of the servant, and that the return was referable to and an incident of the departure. Moreover, the fact that the servant owed the duty to the master of returning the car and resuming his employment, and while returning to the zone of his employment was discharging that duty, was declared not to fix liability against the master.

"Moreover, in the following cases, where a trip was from its inception entirely in the interests of the servant, the view has been taken that neither in the going nor in the returning was the driver acting within the scope of his employment so as to render the owner liable:

"Alabama.--See also Mobile Pure Milk Co. v. Coleman, (1935) 230 Ala. 432, 161 So. 829, denying certiorari in 1935, 26 Ala.App. 402, 161 So. 826."

The same rule has been declared by the Supreme Courts of Connecticut, Georgia, Louisiana, Michigan, Minnesota, Nebraska and Texas.

In the recent case of Paul Daniel v. Sanford Jones, supra, the accident in question occurred while the agent and the "pick up" automobile were engaged in the master's business on the return from the house where he had "picked up and checked up" to the Ligon house where the other agent of the defendant so engaged was resuming his duties on the truck.

In Grimes v. Fulmer, 235 Ala. 645, 180 So. 321, 323, in writing for this court, ...