Daniel v. Jones

• Decision Date: 20 February 1941
• Docket Number: 4 Div. 192.
• Citation: 200 So. 551,240 Ala. 545
• Parties: DANIEL v. JONES.
• Court: Alabama Supreme Court

200 So. 551

240 Ala. 545

DANIEL v. JONES.

4 Div. 192.

Supreme Court of Alabama

February 20, 1941

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Action for damages for personal injuries by Sanford Jones against Paul Daniel. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Wilkerson & Brannen, of Troy, for appellant.

John C Walters, of Troy, for appellee.

THOMAS Justice.

This case is identical with two other cases presently before this court for decision.

Paul Daniel v. Henry Carter, 200 So. 554, and Paul Daniel v. Dink Matthews, 200 So. 554.

The assignment of errors challenges the specific portions of the oral charge of the court, the refusal to give written charges requested by defendant and refusal of the general affirmative charge duly requested.

The negligence of the driver of the damaging and colliding truck is admitted, but the defense is set up that the driver was not on duty, within the line and scope of his employment, at the time and place when the damages were caused. Maryland Casualty Co. v. Matthews, 237 Ala. 650, 188 So. 688 689. In that case the circuit court sitting in equity was passing on the facts of the case and was not governed by the same rules that obtain as when a case is presented to the jury passing on facts. In the case above cited the omnibus clause of an insurance contract, under given evidence, was being interpreted. Its effect was to establish and enforce liability of the insurance company, and in passing on the effect of the evidence, Mr. Justice Knight said:

"The evidence showed that each of the salesmen had permission of Mr. Daniel, the insured, to use the trucks on occasions for their individual and private purposes; that on the night of September 23, 1937, Mr. Wilson, one of the salesmen, instructed Will Ligon to take one of the trucks and go for, and bring back his laundry. This laundry was at Will Ligon's house, which was some distance from the warehouse. Pursuant to these instructions, the said Ligon drove the truck to his home, and parked it, and then went into the house to get the laundry. The evidence shows beyond doubt that Alfonso Glenn, without instructions from any one, and wholly acting upon his own volition, got into the truck, and rode to Will Ligon's house, and after the latter had stopped and parked the truck on the side of the road and had gone into his house, he, Glenn, without permission from any one, drove the truck up the street toward the city, then turned it around, and on return to Ligon's house allowed the truck to run upon the side of the street, and inflict personal injuries upon the complainant and two others. * * *

"Our conclusion is that the evidence wholly fails to support the averments of the bill, and that the trial court committed error in the decree rendered; and further, that under the evidence the bill should have been dismissed."

The records of the two cases have been examined, and it is apparent that there is a material difference presented on this and the former trial. In this record, it is shown that the truck and its driver were about and in the master's business, and that the driver was acting within the line of his employment and as directed by the master's general agent in charge of said business at the time, and that the duties of the driver were being discharged when the collision occurred. This evidence, among other things, on the point is:

"Q. Now that afternoon, or whenever this thing happened, what were you doing down on Academy Street at that time? A. Mr. Wilson sent us down there after some laundry as we have been doing for him and to get some empty beer bottles from East side.

"Q. Mr. Wilson sent you down there after some laundry and to get some empty beer bottles from East Side? A. Yes, sir.

"Q. You say you went down there to get some empty beer bottles and the laundry on the same trip? A. Yes, sir.

"Q. Did you get any beer bottles? A. No, sir; they didn't have none.

"Q. They didn't have none. A. No, sir.

"Q. But you stopped there to get them. A. Yes, sir.

"Q. And after you stopped to get them you rode down the street and that was when you hit these boys. A. Yes, sir. * * *"

This presents a different phase of evidence from that adduced on the former trial, which was in the equity court and without a jury, and presents specific and different and direct evidence. In the other trial the evidence was that the driver and truck went to get the general agent's laundry and "to check up" without any explanation of which were the duties being performed and for whom the check up was being made.

The terms "pick up" and "check up" in the evidence in the former case were not explained to the court and that was not ruled by the scintilla of evidence that prevails at a jury trial. Here the driver and the witness Ligon explained these material business phrases which are so well understood by the witness but not by the court. The office of "checking up" and "picking up" empties was an important duty in the discharge of defendant's business which affect the charge and credit accounts. This was not explained in the former record and was, therefore, meaningless to a court in judging as a jury has to do in this case. Under this evidence it was for the jury to say whether Glenn had permission to take the truck from Ligon's house up the street and returning the same way in the discharge of "picking up" and "checking up" empty bottles due to be returned by the purchaser to the defendant conducting that business.

The court did not err in refusing the general affirmative charge. There were adverse tendencies in the evidence and,...