Clift v. Donegan
| Decision Date | 19 January 1939 |
| Docket Number | 8 Div. 948. |
| Parties | CLIFT ET AL. v DONEGAN. |
| Court | Alabama Supreme Court |
Rehearing Denied Feb. 16, 1939.
Appeal from Circuit Court, Madison County; M. H. Lanier, Special Judge.
Suit for damages by Mattie Donegan against Frank Clift and another, resulting from an automobile collision. From a judgment for plaintiff, defendants appeal.
Affirmed.
Taylor & Taylor and Robt. K. Bell, all of Huntsville, for appellants.
Watts & White, of Huntsville, for appellee.
Action for personal injuries, and property damage resulting from a collision of motor vehicles on a public highway.
Plaintiff Mattie Donegan, was driving her own automobile. Defendant Henry Whitaker, was driving a truck in the opposite direction. In passing each other at night the extended body of the truck came in contact with the left-hand side of the body of the automobile, inflicting the injuries complained of.
Frank Clift, the owner of the truck, was joined as party defendant.
In count one his liability is predicated on the doctrine of respondeat superior.
A question is here presented on the refusal of the affirmative charge in behalf of Frank Clift, as to count one.
Without dispute he was the owner of the truck. Henry Whitaker was in his employ in general farming operation; had the possession and control of the truck for use in such employment, including operation on the highways at night; had the duty to look after repairs on the truck and was under instructions to take the truck to a garage in Huntsville for repairs at the owner's expense. He was permitted to use the truck on missions of his own wholly outside the line and scope of employment.
Defendants' theory is that on the occasion in question Whitaker had driven the truck from the farm into Huntsville to transport himself and wife to attend a movie theater in Huntsville. The collision occurred on the return trip from Huntsville to their home on the farm. If this was the sole objective of the trip, as defendants insist, then admittedly Whitaker was not in the line and scope of his employment, and the owner of the truck was not liable for his negligence in the operation of the truck.
Upon a careful consideration of the whole record we conclude there was some evidence tending to support the view that this was not the sole objective of this trip to Huntsville. If one objective was to have repairs made on the truck, this was within the line and scope of employment, and the fact that advantage was also taken to accomplish a personal mission of the driver, attendance at the movie theater, would not take the operation of the truck without the line and scope of employment. Whether it was on this trip or another occasion on the same day, that he took the truck to...
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