Syllabus by the Court.
1. The motion to dismiss the writ of error on the main bill of exceptions is denied.
2. The court did not err in refusing to admit certain testimony.
3. The evidence demanded a finding that at the time of the collision in question the employee, Jelks, was not within the scope of his employment with the defendant partners, Sparks Motor Company.
4. The evidence demanded a finding that the employee, Jelks, was not an incompetent automobile driver.
C. F. Fambro sued Albert Jelks, Jr. and Sparks Motor Company, a partnership composed of Willis B. Sparks, Jr., M. Garten Sparks, and Mrs. Lucile M. Sparks, for damages allegedly due to the negligence of Jelks in the operation of an automobile while acting within the scope of his employment by Sparks Motor Company. The petition was in two counts. The first count alleged negligence on the part of Sparks Motor Company based on the doctrine of respondeat superior. The second count alleged original negligence on the part of the defendant company in hiring and retaining Jelks as an automobile salesman, when he was at all times alleged an incompetent driver, a fact known to the defendant company.
On the trial the defendant Jelks testified as follows as to count one: 'In November of 1949 I was an auto salesman for Sparks
Motor Company, and I was involved in the accident that has been discussed at this trial. * * * While I was primarily a new car salesman, I could sell either new or used cars. * * * Getting back to my employment at Sparks Motor Company, there were times when I had to be on the floor to show cars to customers who walked in. There were a couple of periods while I was there that we had a duty roster which Mr. Sparks supervised, and you would have to be present on the floor when you were supposed to be. Most of the time I was with Sparks I was provided with a car for use at night, and I was in a Sparks Motor Company car when I was involved in the accident on November 17, 1949. This car was available for sale at all times. When I went to work, Mr. Sparks told me that I could sell a car at any time, that he would be glad to open the doors at 3 a. m. I cannot recall any specific case where I was encouraged to sell a car at night. I may have used a Sparks car at night for demonstration purposes. On occasion I drove some car particularly that I thought there would be a certain market for. A certain group might be interested in that particular car, and I would try to have the car available where those people might see it. As a rule, the main thing I would go home in the car in the evening, and it was available transportation for me. Some of the time I might have, as Mr. Taylor said, steered the conversation toward the subject of automobiles. I frequently talked up the virtues of the particular car I was driving. On a couple of occasions I asked Mr. Sparks for a specific car because I thought it might interest someone that I was to see socially. I did not have a car of my own, and I had no way to get around by automobile at night unless I borrowed the car of my parents. After the normal eight-hour day, my time was free, and I could do what I chose. In answer to the question which you previously asked me on deposition, 'Would you say that it was Mr. Sparks' policy to encourage you to interest people in cars at any time you could?', I think he would have encouraged me on that, that he would have wanted me to. One reason Mr. Sparks gave me a car to use at night was that he was nice enough to do so, and I could use the car at night for whatever reasons I chose within reason. I don't know whether Mr. Sparks ever specifically told me why he gave me a car to use at night, but I presume it was to use at my discretion, and I was a representative of Sparks Motor Company as a salesman. The job of a salesman is a pretty broad term, and if you are working, you are trying to sell cars at all times, if possible. That is the way I felt about it. I did not consider that I was trying to sell a car at all times but I was whenever the opportunity arose or whenever it was a good time to mention sales. Mr. Sparks may have told me that it's customary and the policy of the other salesmen to use automobiles of the Sparks Motor Company. I recall one car in the lot that we both agreed it might be a good idea for me to use in the evenings, perhaps. * * * we agreed that by my driving it perhaps to the Pig 'N Whistle, to the Bell House, or somewhere, getting out of the car and chatting with the fellows, arousing their interest in this particular automobile, that it might prove to be a possible sale. For a good salesman an opportunity arises whenever he sees anybody. Mr. Sparks instructed me in the art of salesmanship, and he never put any limits on my time. Mr. Sparks was good enough to give you credit for knowing a lot of things for your own intelligence, and he did not instruct as a sergeant would instruct a private. I don't think Mr. Sparks disapproved of my trying to sell a car at any time. He knew that I tried to sell cars at off-duty house on occasion, and he knew this by what I told him. I don't remember Mr. Sparks' exact words, but I think he meant that he wanted me to use every contact for the purpose of selling cars, and he probably said it. I considered that I had a mandate from him and his permission to sell his cars whenever I could, whether it was from 8:30 to 6, or after 6, or before 8:30. * * * There were a very few occasions, but some, when I would find prospects by my nighttime contacts after I left Sparks Motor Company, and some--a very few--of these
contacts actually led to sales. * * * Neither Mr. Sparks nor any other representative of Sparks Motor Company ever told me that I was to leave the car at home after I got there or ever protested of my nighttime use of the car. * * * Turning now to the details of this particular accident, it happened one Thursday night. I had been to a Jaycee meeting after I got off from work. I went to the meeting in the 1942 Ford. The Jaycee meetings normally start at 7 o'clock, and I arrived there alone after supper, at 7:30 or 7:45, thereabouts. * * * I believe I left the Jaycee meeting with Mr. Fick Taylor and Mr. John Wilkerson. We went to the Dempsey Tavern. I went down there to eat supper, and Taylor and Wilkerson accompanied me. Mr. Taylor possibly had a beer at the Tavern. * * * I recall having a conversation with Jim Brenner, either in the Tavern or in front of the Dempsey, about an appointment to show him a car. I don't know that a definite appointment was made. We stayed at the Tavern about forty-five minutes and then the three of us went to the Tropics. Mr. Wilkerson went in his car, I believe, and Mr. Taylor must have gone up with me in the Sparks Motor Company car. At the Tropics we ran into and got together with Walter Graham and Ben Jones. I saw Roy Peterson at the Tropics and talked to him about cars, among other things. We discussed some buys, and I mentioned, possibly, one or two cars that I knew of that I thought would be a good buy for him. * * * I want to clear up that point about my reason for going to the Tropics. Ben Jones, I believe, called the Tavern and talked to John Wilkerson. When John got back to our table, he suggested that we go up to see Ben and Walter. He said Ben had something to see him about. So we went to the Tropics. Ben asked John if he would be so good as to take him and Walter, or Walter had asked Ben to ask John. John wasn't feeling well and wanted to go on in. In turn I believe Ben asked me if I would take him out there [Green Lawn Supper Club] or something to the effect that Walter wanted to know if I would. I realized that he didn't have transportation available, and I agreed to take him if he wouldn't stay long; that I wanted to get in early.' Walter Graham testified on behalf of the plaintiff as follows: 'The accident happened on the Thursday before Thanksgiving. Jelks and I had gotten together that night at the Tropics Night Club on Cotton Avenue. I don't recall whom I went to the Tropics with, but I joined Ben Jones there; and when I left, I left with Mr. Jones, Mr. Jelks and Fick Taylor. The four of us went to the Green Lawn, out on Columbus Road, in a Ford that Jelks was driving. * * * We were on our way back to town from the Green Lawn when the accident happened. * * * I knew that Jelks was working for Sparks Motor Company, but I did not know, and it was not discussed, that the car we were in was a demonstrator available for sale. I do not recall Jelks' talking to Roy Peterson at the Tropics. I was already at the Tropics when Jelks came in. John Wilkinson came into the Tropics while I was there, and I may have asked him if he would ride me out to the Green Lawn. I had some business to take care of at the Green Lawn with Mr. Fred Berrong, and I had planned to go out in a cab if necessary. I am not positive whether I asked Wilkinson to take me, but I did want to go to the Green Lawn. I cannot be certain whether I asked Jelks to take me or not. In any event I did ride out to the Green Lawn with him, and my purpose was to transact business with Mr. Berrong. I do not know exactly how long we were there, but I imagine it was a half-hour. Within my hearing that night there was no conversation whatever with reference to the sale of an automobile by Mr. Jelks on the way to the Green Lawn or on the way back, or at the Tropics or at the Green Lawn.'
Fick Taylor testified on behalf of the plaintiff in part as follows: 'I did not know Jelks very well before he started to work for Sparks Motor Company, but I got to know him better after he began. He has tried to sell me a car, and he has tried on various occasions--nearly every time he rode around with me, even on social occasions. I knew the car we were...
