Edwards v. Earnest

• Decision Date: 12 October 1922
• Docket Number: 6 Div. 682.
• Citation: 94 So. 598,208 Ala. 539
• Parties: EDWARDS v. EARNEST.
• Court: Alabama Supreme Court

94 So. 598

208 Ala. 539

EDWARDS v. EARNEST.

6 Div. 682.

Supreme Court of Alabama

October 12, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages by Venoah Earnest (Tuck) against W. S. Edwards Jr., doing business as the Edwards Motor Company. From a judgment for the plaintiff, defendant appeals. Affirmed.

Stokely Scrivner & Dominick, of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellee.

McCLELLAN J.

This is the second appeal in the course of this litigation. Edwards v. Earnest (now Tuck) 206 Ala. 1, 89 So. 729. The appellee (plaintiff) was injured by appellant's (defendant's) auto truck while upon a street in the city of Birmingham. The truck was being driven by Robinson, an employee of appellant. He was sent by a superior from appellant's place of business to the Perry Supply Company's store to get some auto tires. Perry's place was approximately three blocks north and one west of appellant's place of business. He got the tires and put them in the truck. No directions were given Robinson as to the route he should take to and from the supply company's place. Instead of returning to appellant's place with the tires he had put in the truck by one of the three more direct routes, and, without the knowledge or consent of appellant or other superior, Robinson went south about four blocks from Perry's to the Hill Grocery Company, where he made a purchase of sugar and then proceeded further south five blocks and one block east to deliver the sugar at the home of his mother. After delivering the sugar he started back north to appellant's place, and when about half way thereto appellee was run into and injured. The tires procured at Perry's were in the truck throughout the journey, and the injury declared on occurred as the driver was returning to appellant's place after the wholly unauthorized excursion to buy and deliver the sugar.

On former appeal the division of this court considering the cause held that the material inquiry whether Robinson was engaged in his master's service-acting within the line and scope of his employment-when the injury was inflicted was an issue of fact to be determined by the jury under the particular circumstances to which the conclusion was restricted, in effect, that whether the detour taken, for the driver's personal purpose stated, operated a suspension of his relation to his employer, because an entire departure from the line and scope of his employment, was an inquiry of fact that could not be determined by the court as a matter of law. It is now again contended with great earnestness and force that the previous pronouncement is erroneous; that in the substantially similar circumstances shown it should be now decided that, as a matter of law, the driver's departure from the course of travel, for the purpose stated, effected to suspend his relation to his employer, and that the relation had not been resumed at the time plaintiff's injury occurred. The court is not convinced that the former conclusion was erroneous.

If without purchasing and delivering the sugar, the driver had taken the route he did take, it could not be seriously contended that his detour effected, as a matter of law, to suspend his relation to the appellant in whose service he was actually throughout engaged in transporting the tires from the Perry Supply Company to the point, en route to appellant's place, where plaintiff's injury occurred. The fact that this detour was made to...