Cook v. Fullbright
| Decision Date | 19 August 1977 |
| Citation | 349 So.2d 23 |
| Parties | Clarence COOK d/b/a Cook's Auto Parts Company et al., etc. v. Ethel FULLBRIGHT, as Administratrix of Estate of James W. Fullbright, Deceased. SC 2267. |
| Court | Alabama Supreme Court |
Huel M. Love, Love, Love, Lawrence & Burton, Talladega, for appellants.
Charles L. Parks, Anniston, for appellee.
Ethel Fullbright, the widow of James W. Fullbright and administratrix of his estate, brought suit against Otis R. Burton, Sr., as Administrator of the Estate of James Donald Cook, and Clarence Cook, individually and d/b/a Cook's Auto Parts Company, to recover damages for the death of James W. Fullbright which resulted from an automobile collision involving a truck driven by James Donald Cook, deceased. The crux of the suit was that James W. Fullbright's death was the proximate result of the negligence or wantonness of James Donald Cook in the operation of a truck. The plaintiff sought to establish liability on the part of the defendant, Clarence Cook, on two theories: agency and negligent entrustment. The case was submitted to the jury on both theories. The evidence showed that during the early morning hours of July 17, 1975, James Donald Cook, who left a party at a friend's home driving a red 1970 Chevrolet pickup truck, collided with an automobile operated by James W. Fullbright on Highway 202 in Calhoun County. In addition, there was evidence that during the party, Clarence Cook suggested to James Donald Cook that he go home and get in bed.
The verdict was in favor of the plaintiff in the sum of $100,000 against all defendants; judgment was entered accordingly. From denial of a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, defendant Clarence Cook, individually and d/b/a's Cook's Auto Parts Company, brings this appeal.
Clarence Cook urges several grounds for reversal, however, his contention that the trial court erred in failing to grant the motion for new trial because the verdict was contrary to the weight of evidence is dispositive of this appeal.
The sole question under this assignment of error is whether the plaintiff met her requisite burdens of proof on the theories of respondeat superior and negligent entrustment to warrant submission of those issues to the jury.
We hold she did not, and the trial court erred in failing to grant defendant's motion for new trial.
Clarence Cook asserts that plaintiff did not establish an unrebutted presumption of the master-servant relationship between himself and James Donald Cook. We agree.
At trial, the plaintiff offered a tag receipt indicating the license tag of the 1970 red Chevrolet pickup truck driven by James Donald Cook had been purchased in the name of Cook's Auto Parts. Proof of the license tag receipt in the name of Cook's Auto Parts only raises a presumption that James Donald Cook was, by driving the vehicle, acting within the line and scope of his authority as the agent or servant of Clarence Cook.
In Red's Electric Co., Inc. v. Beasley, 272 Ala. 200, 129 So.2d 676 (1961), we stated:
Conceding that the tag receipt was sufficient to raise the administrative presumption of agency, we think that the presumption was adequately rebutted under the controlling case law on agency.
To recover against Clarence Cook upon the theory of respondeat superior, it was encumbent upon plaintiff to show that the collision occurred while James Donald Cook was within the scope of his employment and happened while he was in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him.
Another principle, by which the facts must be tested, is that ordinarily an employee using an automobile, whether belonging to his master or to himself, in going to and from his place of work, is not at such times regarded as engaged in work for his master but is acting solely for his own purposes. Smith v. Brown-Service Insurance Co., 250 Ala. 613, 35 So.2d 490 (1948); Red's Electric Co. v. Beasley, supra.
The evidence adduced at trial on this point showed that James Donald Cook worked for Cook's Auto Parts the business hours of which were 7:30 a. m. to 5:00 p. m., Monday through Friday, and 7:30 a. m. to noon on Saturdays. The testimony was uncontradicted that the collision occurred shortly after 6:30 a. m. on July 17, 1975, and, at the time, James Donald Cook was...
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