General Foods Corp. v. Coney, 3 Div. 918

• Decision Date: 31 October 1950
• Docket Number: 3 Div. 918
• Citation: 48 So.2d 781,35 Ala.App. 492
• Parties: GENERAL FOODS CORP. v. CONEY.
• Court: Alabama Court of Appeals

Page 781

48 So.2d 781

35 Ala.App. 492

GENERAL FOODS CORP. v. CONEY.

3 Div. 918.

Court of Appeals of Alabama.

Oct. 31, 1950.

Rushton, Stakely & Johnston, of Montgomery, for appellant.

Azar & Campbell, of Montgomery, for appellee.

HARWOOD, Judge.

In the court below the plaintiff secured a verdict and judgment. The suit grew out of a collision between plaintiff's automobile and one owned by the defendant.

The sole question presented on review in the appeal perfected by the defendant below relates to whether the collision occurred at a time when defendant's agent and servant was acting within the line and scope of his duties as agent for the defendant.

Indisputably the evidence shows that the automobile involved in the collision with plaintiff's car belonged to the defendant, and further that the driver was an employee of the defendant. Clearly this created an administrative presumption to the effect that the defendant's agent was acting within the line and scope of his duties at the time of the collision. Craft v. Koonce, 237 Ala. 552, 187 So. 730. The appellant contends that it fully met the burden imposed on it by this administrative presumption by evidence it introduced, in that such evidence without dispute rebutted and overcame the administrative presumption and therefore the court erred in refusing defendant's written request for the affirmative charge, and in denying its motion for a new trial.

We will set forth only the tendencies of the evidence bearing upon the issues raised by appellant's brief, namely, that evidence which sheds light on the question of respondent superior.

The evidence introduced by the defendant consisted of the deposition of Mr. C. L. Davis, the driver of the defendant's automobile at the time of the collision.

Mr. Davis testified that at the time of this collision he was employed by the appellant company as a salesman. His usual working hours were from 8:00 A. M. till 5:00 P. M. He lived in Tuscaloosa, and his territory included at least fifteen counties surrounding Tuscaloosa. He called on grocery stores, wholesalers and jobbers in his territory. Depending on the line of goods then being pushed he would carry samples of such items in the automobile with him. The automobile was furnished to him by the appellant.

As to the method followed in arranging his work schedule Davis testified as follows:

'Q. Was your program pretty well outlined by General Foods Corporation as to what city you would work in one week or what county you would work? 'A. They asked us for an advance route sheet. In other words, I could tell the town I would be in on a certain day and the hotel I would be in that night, so they could reach us by wire or phone or air mail. The exact stores; no. They found that out from the daily report but they did know ahead of time the exact town I would work and where I would be at night.

'Q. Did you tell them as much as a week ahead of time where you would be the following week? 'A. What hotel I would be in; yes.

'Q. And what towns you would work and the dates? 'A. Yes.

'Q. Did they ever change your route and tell you to go to some other town instead of the route you had outlined? 'A. Yes. Sometimes we would have something come up that would interrupt our planned route. Maybe a change in price or there would be something come up that had to be attended to and we might have to cut out across the country and call on jobbers only and that would disrupt my program.'

On the day in question Davis had worked the Bessemer area. After he 'got through with work' he had gone to his brother's home in Bessemer where he had dinner and visited until around 10:30 or 11:00 P. M. He then started for his home in Tuscaloosa. The collision occurred on the highway at a point about midway between these two cities.

Davis was to begin a two week vacation on the day following the collision.

The general rule is that an employee using an automobile whether belonging to his employer or to himself, in going to and from his place of work, is not at such times regarded as engaged in work for his employer, but is acting solely for his own purposes. Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So.2d 490.

However, where a master places at the disposal of his servant an automobile to be used by the servant in going to and from his work, and such transportation arrangement is beneficial to both, the relation of master and servant continues while the automobile is used for such purposes. Blair v. Greene, 247 Ala. 104, 22 So.2d 834; Blashfield's Cyc. of Automobile Law and Practice, Perm. Ed. Vol. 5, Section...