Blackmon v. Starling

• Decision Date: 16 October 1930
• Docket Number: 6 Div. 559.
• Parties: BLACKMON v. STARLING.
• Court: Alabama Supreme Court

130 So. 782

222 Ala. 87

BLACKMON v. STARLING.

6 Div. 559.

Supreme Court of Alabama

October 16, 1930

Rehearing Denied Nov. 28, 1930.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by George W. Starling against T. E. Blackmon doing business as Blackmon Furniture Palace, for wrongful death of plaintiff's minor child, alleged to have been caused by an automobile truck operated by defendant. From a judgment for plaintiff, defendant appeals.

Affirmed.

Harris Burns and Collins Urquhart, both of Birmingham, for appellant.

Ewing Trawick & Clark, of Birmingham, for appellee.

THOMAS J.

The question presented for decision is the propriety of refusing appellant's requested general charge.

The decisions are collected in McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, and Jones v. Bell, 201 Ala 336, 77 So. 998, and the rule need not be repeated as to the giving and refusal of such charge.

It must be admitted that the map or drawing exhibited by brief of appellant was his interpretation of the evidence, rather than supplying the diagram employed in the introduction of the evidence. When the bill of exceptions is given careful consideration, the absence of such blackboard drawing from the record will not prevent a decision on the merits of the issue presented by appellant. Burton & Sons Co. v. May, 212 Ala. 435, 441, 103 So. 46.

It is declared in this jurisdiction that, on proof of ownership of the vehicle, and that its driver was that of defendant, a rebuttable presumption is raised that he was driving within the line and scope of his employment. Such prima facie presumption can be overcome by proof, and reasonable inferences to the contrary, which are undisputed, clear, strong, and convincing, negativing such presumption. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Ford v. Hankins, 209 Ala. 202, 204, 96 So. 349; Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; Tullis v. Blue, 216 Ala. 577, 578, 114 So. 185; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816.

And our decisions are further agreed that, where there has been a deviation or departure from the master's business, and the scope of the agent's employment, where such personal purpose and benefit has been accomplished, and the agent is in the process of returning to the sphere of his employer's business, the question as to whether he is acting within the line and scope of his employment and his master's business is for the jury under appropriate instructions from the court. Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A. L. R. 1387; Id., 208 Ala. 539, 94 So. 598; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; St. Louis-San Francisco Ry. Co. v. Robbins, 219 Ala. 627, 123 So. 12; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L. R. A. 1917E, 715.

In this case the presumption indulged was where the negligent agent was the regular chauffeur, driver, or employee of defendant, using defendant's car. Just what the driver's mission was at the time of the injury is the material question of fact to be determined from the reasonable tendencies of the evidence. It is defendant's contention that said driver, Brewer, was instructed to carry the truck to the garage, and that he went down Avenue F and thence to Avenue I to his home, and thence he proceeded along Avenue C to the place of the accident. Plaintiff's witness Carlisle directly contradicts this tendency of defendant's evidence, by saying that a short while, less than thirty minutes before the accident, his (defendant's) truck with the mattress in it passed his house on Avenue D, proceeding in the direction of Fairfield and from Ensley. This evidence was denied by Brewer, saying on cross-examination that, if he did go along Avenue D, he was not on any personal errand, but on that of appellant Blackmon. Hence the evidence of appellant is disputed, and presents the conclusions of fact that only the jury may draw under proper instructions by the court. If the evidence of Carlisle be true, the jury were warranted in finding that Brewer was returning from a mission for his master at the time the Starling child was killed; for Brewer stated that, if he was on Avenue D with the truck, it was only on a mission for his employer. This phase of the evidence was not explained by appellant nor counsel, from the evidence.

Examining the phase of the evidence to the effect that the uncle of Brewer got on the truck at Thirty-Fourth street and Avenue C as Brewer was going toward Ensley and the garage where the truck was stored, it is shown that the uncle and Brewer did not meet by prearrangement or design; for the driver saw the uncle walking, and called and asked his destination, and on reply invited him to ride, saying the truck was going that way. This contained the inference that there was no deviation from the master's business to take the...