Cox v. Carr

• Decision Date: 02 March 1961
• Docket Number: 3 Div. 931
• Citation: 271 Ala. 658,127 So.2d 622
• Parties: Jack A. COX v. Ethel CARR.
• Court: Alabama Supreme Court

Page 622

127 So.2d 622

271 Ala. 658

Jack A. COX v. Ethel CARR.

3 Div. 931.

Supreme Court of Alabama.

March 2, 1961.

Chas. E. Porter, Rushton, Stakely & Johnston, Montgomery, for appellant.

Ball & Ball and John R. Matthews, Jr., Montgomery, for appellee.

GOODWYN, Justice.

Appellee (Ethel Carr) brought suit in the circuit court of Montgomery County against appellant (Jack A. Cox, individually and doing business as Acme Electric Company) and Gerald O. Gray to recover damages for personal injuries allegedly received in a collision between an automobile in which she was a passenger and an automobile owned and being driven by Gray. The complaint consists of three counts. Count 1 alleges that 'the defendant negligently ran an automobile into or against the motor vehicle in which plaintiff was riding as a passenger'; Count 2, that Gray, 'an agent, servant or employee of the defendant Jack A. Cox, while acting within the line and scope of his employment, negligently ran an automobile into or against the motor vehicle in which plaintiff was riding as a passenger'; and Count 3, that Gray, 'an agent, servant or employee of the defendant, Jack A. Cox, while acting within the line and scope of his employment willfully and wantonly injured plaintiff by running an automobile into or against the said motor vehicle in which plaintiff was riding as a passenger.' The case went to the jury on all three counts.

The jury returned a verdict in favor of plaintiff against both defendants and judgment was rendered accordingly. Defendant Cox's motion for a new trial being overruled, he brought this appeal. Gray has not appealed, not has he assigned error.

Appellant assigns as error the giving of appellee's requested charge No. 2. The particular portion of this charge with which we are concerned is the part italicized, viz.:

'2. The court charges the jury that if the defendant, Gerald O. Gray, was operating his own automobile at the time and place of the collision in the business of the defendant, Jack A. Cox, and with the knowledge and consent of the electrician in charge of him, then the defendant, Gerald O. Gray, would be acting as the agent or servant of the defendant, and the negligence of the said Gray, if any, in operating said automobile would be chargeable to the defendant Cox.'

One of the seriously disputed questions in the trial of the case was whether Gray, at the time of the accident, was Cox's 'agent, servant or employee' and 'acting within the line and scope of his employment.' There appears to be no question that Gray was one of Cox's employees and was driving his own automobile in going from Cox's office to one of Cox's jobs; that Cox had provided him transportation for that purpose; and that such use was for Gray's personal convenience in having the automobile available at the job site upon completion of...