First Nat. Bank v. Sanders

• Citation: 225 Ala. 417,143 So. 578
• Decision Date: 06 October 1932
• Docket Number: 4 Div. 655.
• Parties: FIRST NAT. BANK OF DOTHAN ET AL. v. SANDERS.
• Court: Supreme Court of Alabama

143 So. 578

225 Ala. 417

FIRST NAT. BANK OF DOTHAN ET AL. v. SANDERS.

4 Div. 655.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

Action for damages for personal injuries by O. B. Sanders against the First National Bank of Dothan and another. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals, under section 7326, Code of 1923.

Reversed and remanded.

H. R McClintock, of Dothan, for appellants.

C. L Rowe, of Elba, for appellee.

BROWN J.

This is an action on the case by appellee, brought originally against the First National Bank of Dothan, Morris Malone, and S. H Brock. Brock died before the trial was entered upon, and the complaint was amended by striking his name as a party defendant.

The case was submitted to the jury under counts 6 and A of the complaint. Count 6 ascribed the plaintiff's injury to the negligence of Brock, the driver of the automobile, while count A ascribed said injury to the wanton or willful conduct of Brock.

The verdict for plaintiff responded to count 6, and rulings relating to count A are not material to the questions presented by the appeal.

Count 6 avers that the defendant First National Bank furnished to its agent Malone the automobile on which plaintiff was riding at the time of his injury, to be used by him, Malone, in "looking after the renewal and collection of divers notes and account *** and intrusted to the said Malone the said automobile which it owned *** that the said automobile was in the complete charge and possession of said Malone, as agent of the said Bank; that he had full authority and dominion over the same and was accustomed to take passengers as his guests therein, all of which the defendant Bank and its officers and agents well knew; that on, to-wit: the 5th day of October, 1929, the said Malone while acting within the scope of his employment procured the defendant S. H. Brock to drive the said car in and about the business of the defendant First National Bank, and the said Brock, being in sole control of the operation of the said car, and while driving the same upon a public highway in Coffee County, Alabama, invited and took into or upon the said automobile the plaintiff and another, and thereupon drove the same upon the Enterprise-Elba public highway in Coffee County, Alabama, in such a careless, reckless, negligent and improper manner that the plaintiff was thrown into the roadway and was injured" (cataloguing the injuries) all of which "was the proximate result of the negligence of the defendant Brock who had been procured to operate and drive the said automobile by the said Malone, acting within the scope of his employment and in furtherance of the business of the defendant First National Bank," etc. (Italics supplied.)

Taking the averments of the count as true, but construing them most strongly against the pleader, as must be done on demurrer, it appears that Brock was an agent or servant of the defendant bank to operate the automobile, he having been procured to drive the car by Malone while acting within the scope of his employment, yet it does not appear by affirmative averment that Brock was acting within the scope of his employment in inviting plaintiff to ride in or on the automobile.

The plaintiff, therefore, while an invitee or passenger of Brock, was a mere licensee as to the bank, and it was only liable for negligent injury after the discovery of peril, or for wanton or willful injury. Lawrence v. Kaul Lumber Co., 171 Ala. 306, 55 So. 111; Crider v. Yolande Coal & Coke Co., 206 Ala. 71, 89 So. 285, 286; Perry Supply Co. v. Brown, 221 Ala. 290, 128 So. 227; Wurtzburger v. Oglesby, 222 Ala. 151, 131 So. 9.

In Emison v. Wylam Ice Cream Co., et al., 215 Ala. 504, 111 So. 216, cited and relied on by appellee, the truck was propelled against the plaintiff, or against a barrel which was by the force of the truck propelled against plaintiff, resulting in her injury, while being driven by Leroy Pope, to whom White, the driver had committed its operation without authority to do so, and there it was held that such use of the truck was the act of White the driver in the prosecution of his master's business. This would seem to rest liability on the doctrine of respondeat superior, yet some of the utterances in that opinion are inconsistent with this idea. See comment 54 A. L. R. 854, note.

The utterances in that case, however, are clearly not applicable to the case of the plaintiff here, who was not injured by being run upon or against by the automobile, but by being caused to fall from a position which he had voluntarily assumed thereon for his own benefit, and, so far as appears in the count, at the invitation of one who had no authority to invite him, "assumed all the risks of carriage except such as might result from wanton or intentional wrong or a failure to exercise due care to avert injury after his danger became apparent." Crider v. Yolande Coal & Coke Co., supra.

If procuring Brock to drive the car on the business of the bank was within the scope of Malone's authority, as alleged, Brock became the agent of the bank and was not the agent or servant of Malone, and Malone would not be liable unless he was present and participated in the damnifying act.

While count 6 was subject to demurrer, it was not subject to joint demurrer of the defendant bank and Malone, nor to the grounds stated in the demurrer. Code 1923, § 9479; Romaine S. Scott et al. v. Jackson Securities & Investment Company (Ala. Sup.) 142 So. 76.

The plaintiff's evidence shows that S. H. Brock, while driving the automobile, a one seated Ford roadster, belonging to the defendant First National Bank of Dothan, along the highway between Elba and Enterprise, stopped the automobile and invited plaintiff and his brother-in-law, Culver, to "get on and ride"; that Culver got in the car and occupied a seat by the side of Brock, and plaintiff got on the running board standing and holding to the top of the car. Brock then drove the car along the highway.

Culver testified: "I don't know how far it was that we went on the car before the...