Emison v. Wylam Ice Cream Co.

• Decision Date: 20 January 1927
• Docket Number: 6 Div. 717
• Citation: 111 So. 216,215 Ala. 504
• Parties: EMISON v. WYLAM ICE CREAM CO. et al.
• Court: Alabama Supreme Court

111 So. 216

215 Ala. 504

EMISON v. WYLAM ICE CREAM CO. et al.

6 Div. 717

Supreme Court of Alabama

January 20, 1927

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Will Emison against the Wylam Ice Cream Company and W.O Metts. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Wm. A Jacobs, of Birmingham, for appellant.

Fred Fite, of Birmingham, for appellees.

SOMERVILLE J.

The American decisions seem to be unanimous in holding that "where there is neither express nor implied authority given a servant to employ another to perform or to assist him in the performance of his work, or a subsequent ratification by his employer of such employment, the relation of master and servant between the employer and one so employed by his servant, does not exist, and he is not liable for the negligent acts of the latter under the doctrine of respondeat superior." 39 Corp Jur. 1272, § 1459, citing numerous cases, among others, Thyssen v. Davenport Ice, etc Co., 134 Iowa, 749, 112 N.W. 177, 13 L.R.A.(N.S.) 572, Haluptzok v. Gr. N.R. Co., 55 Minn. 446, 57 N.W. 144, 26 L.R.A. 739, and Board of Trade, etc., v. Cralle, 109 Va. 246, 63 S.E. 995, 22 L.R.A.(N.S.) 297, 132 Am.St.Rep. 917. On this proposition, it may be noted in passing our own cases of Tennessee, etc., Co. v. Hayes, 97 Ala. 201, 12 So. 98, and Weinacker Ice & Fuel Co. v. Ott, 163 Ala. 230, 50 So. 901, are not in point, because there the employing servants had authority to employ the assistants whose negligence caused the injury.

Though a few cases seem to hold that under the conditions first above stated the master is not liable on any theory whatever (Cooper v. Lowery, 4 Ga.App. 120, 60 S.E. 1015; Levin v. Omaha, 102 Neb. 328, 167 N.W. 214; Jewell v. Grand Trunk R. Co., 55 N.H. 84), the great weight of authority, and we think of reason also, is that a denial of liability under the rule of respondeat superior does not necessarily absolve the master from liability on other grounds, although the decisions are not in accord as to the circumstances which will impose liability, nor as to the juridical theory upon which that liability should be explained. 39 Corp.Jur. 1272, § 1459, and cases cited.

Some of them seem to include among the factors necessary to the master's liability the presence of the master's servant at the time and place of the damnifying act of the assistant, employed or authorized by him to perform his own authorized service, in furtherance of the master's business. Geiss v. Twin City, etc., Co., 120 Minn. 368, 372, 139 N.W. 611, 45 L.R.A.(N.S.) 382, and noted; Dimmitt v. Hannibal, etc., R.R. Co., 40 Mo.App. 654; Thixton v. Palmer, 210 Ky. 838, 276 S.W. 971, 44 A.L.R. 1379; Booth v. Mister, 7 C. & P. 66, 32 E.C.L. 502; 39 Corp.Jur. 1272.

But, as stated in the text of 39 Corp.Jur. 1272, § 1459:

"Other decisions have formulated an even broader rule and affirmed the liability of the master on the ground that the injury was caused by an instrumentality used by the servant in the prosecution of the master's business, thereby making the act complained of the act of the servant himself, without regard to whether the act causing the injury was or was not done in the presence of the servant."

This theory of liability is supported by the cases of Ellefson v. Singer, 132 A.D. 89, 116 N.Y.S. 453; Simons v. Monier, 29 Barb. (N.Y.) 419; Campbell v. Trimble, 75 Tex. 270, 12 S.W. 863. See, also, Bank of Calif. v. W.U.T. Co., 52 Cal. 280; Thyssen v. Davenport, etc., Co., supra (13 L.R.A.[N.S.] 576, 578). In Hollidge v. Duncan, 199 Mass. 121, 85 N.E. 186, 17 L.R.A.(N.S.) 982, it appears that the assistant was called upon for an emergency service, and the negligent act was done in the immediate presence of the servant in charge; and the theory of the master's liability was that the servant "used the assistance of the bystander as he would have used a tool or appliance which he had procured, and which he must be regarded as having implied authority to procure under the circumstances." And it was further observed that:

"The fact that the tool or appliance was an intelligent human being does not affect the matter any more than the fact that another person held the reins did in Booth v. Mister, 7 C. & P. 66."

Hollidge v. Duncan, supra, is therefore not in point on the question here involved--the...