Erlick v. Heis
| Decision Date | 03 June 1915 |
| Docket Number | 98 |
| Citation | 193 Ala. 669,69 So. 530 |
| Parties | ERLICK et al. v. HEIS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action by George Heis against Sam Erlick and another. Judgment for plaintiff, and defendant Sam Erlick appeals. Affirmed.
Stokely Scrivner & Dominick, of Birmingham, for appellant.
Black & Sadler, of Birmingham, for appellee.
This case was submitted and decided under the new rule 46, and the opinion of the court was rendered by Mr. Chief Justice ANDERSON.
The plaintiff sued Sam and Julian Erlick jointly for the wrongful death of his minor daughter, and recovered a judgment against both of the defendants. This appeal is taken by Sam Erlick alone, who insists that he was entitled to the general charge, for the reason that he was in no way connected with the death of the intestate, and was not in law responsible for the conduct of his son Julian, as he was going upon a journey in pursuance of his own business, notwithstanding that the car which killed the deceased belonged to the appellant, and the said Julian was his minor son, and was, at the time, riding the appellant's wife and her invited guests.
We may concede that the appellant, though the owner of the automobile, was not responsible for the conduct of the driver of same, unless Julian, the said driver, was his agent or servant, expressed or implied, and that the relationship alone did not of itself establish the agency. Parker v Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87; Armstrong v. Sellers, 182 Ala. 582, 62 So. 28. Yet we think that the evidence in this case afforded a very reasonable inference for the jury to find that Julian was acting for and in behalf of the appellant in taking his wife and her guests to Birmingham. It may be true that appellant did not specifically direct or authorize his son Julian to take his mother and her guests to Birmingham upon the day in question, and that, while his said son was a minor, he was working for himself and had been emancipated; yet he remained under his father's roof, and was to all intents and purposes a member of the family, and had repeatedly been called upon, and had, in fact, for months acted as a chauffeur for his mother, with the knowledge and consent of the appellant, and to such an extent that the jury could have inferred, at least, an implied understanding between the father and son that he could or should take the...
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...the car for himself and his elder sister, though, as he testified, the trip was 'mostly his.' The court has thought the decision in Erlich v. Heis was not in conflict with the rulings Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87, and Armstrong v. Sellers, 182 Ala. 582,......
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