Cook v. D.H. Mellown & Co.

• Decision Date: 23 October 1924
• Docket Number: 2 Div. 850.
• Citation: 212 Ala. 41,101 So. 662
• Parties: COOK v. D. H. MELLOWN & CO. ET AL.
• Court: Alabama Supreme Court

101 So. 662

212 Ala. 41

COOK v. D. H. MELLOWN & CO. ET AL.

2 Div. 850.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Sumter County; John McKinley, Judge.

Action for damages by J. H. Cook against D. H. Mellown & Co. and others. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under section 6, page 449 Acts 1911. Affirmed.

George O. Miller, of Livingston, and Patton & Patton, of Carrollton for appellant.

John W Altman, of Birmingham, and J. R. McDaniel, of York, for appellees.

BOULDIN J.

This is an action for damages for the negligent killing plaintiff's bird dog. Plaintiff's evidence tended to show: His dog was run over and killed by a motor truck, the property of defendants, while being operated by their employee on a public street of the town of York, and that such killing was the result of negligence.

Defendants' evidence tended to show: Charlie Simmons was hired to drive a wagon and deliver groceries to defendants' customers, and haul ice to defendants' store. He had been employed in this service two years or more. Defendants acquired a motor truck a few months before the accident. It was put in charge of Mr. Johnson as driver. At times this truck was used in delivering groceries, Mr. Johnson driving, and Simmons going with the truck to deliver packages, Simmons wished to drive the truck, and defendants denied his request. On a previous occasion he took out the truck without the knowledge or consent of defendants, who then instructed him not to drive it again. On the day of the accident Simmons got the key to the truck, where it was kept in the store, loaded up groceries, and proceeded to drive it in the delivery business, and while so engaged ran over plaintiff's dog. Defendants did not authorize him to drive the truck at any time, and had no knowledge of his so doing until afterwards. He was furnished a wagon for his use. The question is: Was the delivery boy, Charlie Simmons, acting within the line or scope of employment when he killed plaintiff's dog?

Appellant's view is that, being employed to deliver groceries by vehicle his negligent act while driving on the street in that business was within the scope of his employment. Appellees' view is that driving the truck was without authority, and therefore injury resulting from his negligence in such driving was without the scope of his employment.

A clear-cut issue on the doctrine of respondeat superior is presented. We think this doctrine cannot be extended to the case here presented. The liability of the master for the torts of his servant is grounded to a degree upon public policy. What one does by another he does himself. In...