Dowdell v. Beasley

Decision Date11 November 1920
Docket Number3 Div. 450
Citation205 Ala. 130,87 So. 18
PartiesDOWDELL et al. v. BEASLEY.
CourtAlabama Supreme Court

Rehearing Denied Dec. 18, 1920

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by Wilbur F. Beasley against James S. Dowdell and others for damages for personal injuries. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Rushton & Crenshaw, of Montgomery, for appellants.

C.P McIntyre, of Montgomery, for appellee.

SOMERVILLE J.

On a former appeal in this case (Dowdell et al. v. Beasley [App.] 82 So. 40) it was held that there is a prima facie presumption of fact that a chauffeur, who is employed to operate a car, and who is found operating it in the ordinary way, is acting within the course of his employment and, further, that that presumption arose out of the evidence then before the court, and was not rebutted by the testimony offered by defendants, in the absence of a comprehensive showing that the chauffeur was not acting under the authority of any member of defendants' firm, or any authorized agent thereof, or in pursuit of some business of the firm with respect to the "unknown man" whom he was going to see.

The law is thoroughly well settled that "the owner of an automobile is not liable to one who is injured by the negligence of his chauffeur while operating the machine without his knowledge or permission, and for a purpose other than that for which he was employed, as where a driver is on an errand personal to himself, or is making a detour for his own purposes." 2 R.C.L. 1199, § 33.

On the second trial the evidence needed to overcome the presumption that the chauffeur was acting within the course of his employment seems to have been supplied by defendants; and taken as a whole, it clearly and comprehensively rebuts and excludes the implication in question. Unquestionably the chauffeur had turned aside from his duties and instructions and gone upon a personal mission of his own in no way related to the business or service of his masters, or to the care and control of the car as its driver. And while he was proceeding to that destination, at a point quite remote from the garage to which he had been sent for gasoline, with instructions to return directly to defendants' place of business, he ran upon and injured plaintiff. In such a case the authorities all agree, in line with the settled principles of the law of respondeat superior, that the master cannot be held liable for the wrongful acts of his servant. Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L.R.A. (N.S.) 598; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L.R.A. (N.S.) 93, and note; 139 Am.St.Rep. 670, and note; Lotz v. Hanlon, 217 Pa. 339, 66 A. 525, 10 L.R.A. (N.S.) 202, 118 Am.St.Rep. 922, 10 Ann.Cas. 731; Fleischner v. Durgin, 207 Mass. 435, 93 N.E. 801, 33 L.R.A. (N.S.) 79, and note; 20 Ann.Cas. 1291, and note; Brinkman v. Zuckerman, 192 Mich. 624, 159 N.W. 316; Crady v. Greer, 183 Ky. 675, 210 S.W. 167; Patterson v. Kates (C.C.) 152 F. 481; Huddy on Automobiles, 395; 28 Cyc. 39.

Of course a mere deviation from the master's instructions as by making a detour from the direct or usual route of travel (Long v. Nute, 123 Mo.App. 204, 100 S.W. 511), or by going for oil for the car to a nearby garage, instead of to the cellar of the hotel, as directed (...

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