Burger v. Peerless Lumber & Mfg. Co.

• Decision Date: 24 November 1916
• Docket Number: 6 Div. 385
• Citation: 197 Ala. 470,73 So. 77
• Court: Alabama Supreme Court
• Parties: BURGER et al. v. PEERLESS LUMBER & MFG. CO.

73 So. 77

197 Ala. 470

BURGER et al. v. PEERLESS LUMBER & MFG. CO.

6 Div. 385

Supreme Court of Alabama

November 24, 1916

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by J. Burger and others against the Peerless Lumber &amp Manufacturing Company. Judgment for defendant and plaintiffs appeal. Transferred from the Court of Appeals, under Acts 1911, p. 449, § 6. Affirmed.

David S. Anderson and A.H. Alston, Jr., both of Birmingham, for appellants.

Haley &amp Haley, of Birmingham, for appellee.

McCLELLAN J.

Action for damages, instituted by the appellants against the appellee. The complaint contains two counts, one in trespass and the other in case. The cause of action declared on arose out of the act of Will Emery, a negro driver of a delivery wagon used by the defendant in its mill business at Birmingham. Emery was sent by defendant to deliver to Drennen & Co.--a different mercantile concern doing business next door to the plaintiffs in that city--a load of lumber. Emery placed the lumber in an upright position on a rear elevator belonging to and used by the plaintiffs to lift goods, etc., to their upper floors. When the elevator, with the projecting lumber on it, approached the top of its shaft, the ends of the lumber struck the pipes of the sprinkler system in the building, broke them, and emptied their contents on some of the goods of the plaintiffs, causing damage to the amount of about $75. The plaintiffs were reimbursed by the casualty company which had issued to them a policy of insurance covering such a case. The claim against the defendant became the property of that company, and this suit is really for that company's benefit. In addition to the general issue, the defendant interposed two special pleas, on which issue was joined. Plea 2 alleged that the defendant's driver did what resulted in damage to plaintiffs' property "at the invitation of agents" of the plaintiffs "who were then and there acting within the line and scope of their authority as agents of the plaintiffs." Plea 3, in its substantial part, ascribed the damage to the contributory negligence, imputed to plaintiffs, in this form:

"That the servants or agents or other parties in control of or using said elevator for said Burger Dry Goods Company invited or instructed the agent or servant of said defendant to place said lumber on said elevator in the manner and place where it was so placed on said elevator and said agents or servants of said Burger Dry Goods Company acting within the scope of their authority operated said elevator at the time and place where said alleged damage occurred or was caused."

No question of the sufficiency of these pleas appears to have been made in the city court. After hearing the evidence, the court, without a jury, gave judgment for the defendant on the issues thus made. The conclusion of the court below on the evidence, which was delivered by the witnesses ore tenus, must be treated on this appeal like the verdict of a jury on issues of fact. Woodrow v. Hawving, 105 Ala. 240, 16 So. 720; York v. State, 154 Ala. 60, 45 So. 893, collecting numerous adjudications; Thompson v. Collier, 170 Ala. 469, 54 So. 493, among many others.

The appellant asserts that the conclusion attained by the trial court was due, alone, to a misapprehension of the law in this respect: That the master cannot be held to account for the wrong or negligence of his servant, resulting in damage to another, if the servant violated the master's express instructions in doing the act from which the damage proximately results. If the trial court entertained that view--it does not appear from this record that such was the trial court's...