Colley v. Lewis

• Decision Date: 16 January 1913
• Citation: 7 Ala.App. 593,61 So. 37
• Parties: COLLEY v. LEWIS.
• Court: Alabama Court of Appeals

61 So. 37

7 Ala.App. 593

COLLEY v. LEWIS.

Court of Appeals of Alabama

January 16, 1913

Appeal from Circuit Court, Jefferson County; Thomas W. Wert, Judge.

Action by J.F. Lewis against E.H. Colley. Judgment for plaintiff and defendant appeals. Affirmed.

Frank L. Ward, J.T. Stokeley, and R.H. Scrivner, all of Birmingham for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

WALKER P.J.

It is not questioned that the appellee (the plaintiff below) sustained injuries in person and property as the result of an automobile, which belonged to the appellant, colliding with the wagon in which the appellee was riding, and that the evidence was such as to make it a question for the jury whether the collision and the consequent injuries were attributable to the negligence of the person who was in charge of and operating the automobile. The appellant bases his claim to exemption from liability for the wrong upon the ground that he did not at that time bear any such relation to the person who was operating the automobile as to render him responsible for that person's negligent operation of the machine. The following facts were disclosed by the evidence: About 11 o'clock in the night before the morning of the collision the defendant's automobile got out of order while he was riding in it and stopped in a street in the city of Birmingham some distance from the Bonita Theater, at which place the appellant was engaged in the business of running a moving picture show. When this happened the appellant went to the theater, and, accompanied by a Mr. Joseph, who was an electrician employed by him as an operator of a moving picture machine, and two other theater employés, returned to the place at which he had left the automobile, and was there engaged with the three other men in trying to get the automobile fixed so that it would run until about 11:30 o'clock, when he left to catch a street car to his home, leaving the automobile, the trouble with which had not then been discovered, in charge of Mr. Joseph, and telling him that when he got through with it to leave it in front of the theater. Joseph continued to work on the machine with the assistance of the two other men until about 1 o'clock, when he succeeded in getting it to run. He ran it to the theater, and then with his two companions rode out several miles into the country in it, and was returning to Birmingham at an early hour in the morning when the collision occurred. There was some evidence tending to show that Joseph in driving around in the machine was testing it to see if it worked all right. Other evidence tended to show that Joseph in taking the drive into the country, was using the machine for a purpose of his own and of the companions who accompanied him having no connection with the purpose for which the custody of the machine had been intrusted to him by the appellant.

It is mentioned in the argument of the counsel for the appellant, as having some bearing upon the question of his liability, that Joseph was employed and paid to run a moving picture machine, and that it was not a part of his duty as such employé to repair or operate the appellant's automobile. If at the time of the collision Joseph's use of the machine was incidental to the service in reference to it which he had undertaken for the appellant, the fact that that service was rendered gratuitously would not enable the appellant to escape liability for Joseph's negligence. Cooley on Torts (3d Ed.) p. 1007. But there was evidence tending to prove that one of Joseph's duties as an employé was to fix or repair his employer's automobile when called on to do so.

It is not denied that the contention of the appellant would have to be sustained if the necessary inference from the evidence in the case was that at the time of the collision the person in charge of the automobile was in no manner engaged in rendering the service for the performance of which its custody had been intrusted to him, but, without authority from its owner, was using it for some purpose of his own having no relation to such service. Henderson-Mizell Mercantile Co. v. Chapman, 3 Ala.App. 296, 57 So. 82. On the other hand, that...