General Refrigeration Sales Co. v. Taylor, 1 Div. 818.

• Decision Date: 20 December 1934
• Docket Number: 1 Div. 818.
• Citation: 158 So. 314,229 Ala. 479
• Parties: GENERAL REFRIGERATION SALES CO. v. TAYLOR.
• Court: Alabama Supreme Court

158 So. 314

229 Ala. 479

GENERAL REFRIGERATION SALES CO. v. TAYLOR.

1 Div. 818.

Supreme Court of Alabama

December 20, 1934

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action for damages for personal injuries by Lonie Taylor against the General Refrigeration Sales Company. From a judgment for plaintiff, defendant appeals.

Inge Stallworth & Inge, of Mobile, for appellant.

Alex. T. Howard, of Mobile, for appellee.

FOSTER Justice.

Appellee recovered a judgment for personal injuries sustained in an automobile in which she was riding when it collided with another driven by Mr. C. W. Young, in Mobile.

The complaint alleged that at the time of the collision Young was acting in the line and scope of his employment by defendant and so negligently operated the car he was driving as to cause the collision, and as a proximate result of which she sustained the personal injuries.

Defendant was engaged in the business of selling and distributing the refrigeration plants manufactured by General Refrigeration Company, a company distinct from defendant. Defendant had employed C. W. Young as a salesman for it. He had a certain territory in which to solicit business, and received a salary and commissions, and had a drawing allowance against his commission account. He paid his own expenses and selected his own manner of soliciting business and method of transportation. He owned an automobile which he used as occasion required, but it was in no way connected with his employment. He sometimes traveled on the trains and busses and sometimes walked. Defendant made no suggestion or requirement about that nor as to any of the details to be observed by him. He paid all his expenses personally, including the purchase, operation, and upkeep of his car. His commission was on the amount of his sales, and defendant had no right under the contract to control the methods he used or his transportation facilities. He had no right to bind defendant by any contract of sale either for cash or on credit. They were all to be and were submitted to defendant for approval, and were so approved before they were binding.

If the injury to plaintiff had occurred in and about the sale of defendant's goods under the terms of such an arrangement, it would have imposed no liability on defendant. Our decisions are clear that Young was not such a servant of defendant as to make it responsible on the doctrine of respondent superior. Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, 17 A. L. R. 617; General Exchange Ins. Co. v. Findlay, 219 Ala. 193, 121 So. 710; U.S.C. I. P. & F. Co. v. Fuller,

212 Ala. 177, 102 So. 25.

On February 18, 1931, before the accident on March 19, 1931 Young had obtained a contract from one Tanner near Mobile for the purchase of a refrigeration plant from defendant. It was submitted to defendant and approved by it March 9th. Mr. Young had then fulfilled his contract with defendant, and was due to be credited with his commission. He had nothing to do, under his contract with defendant, in respect to the installation of the plant or its subsequent servicing. But he did take a personal interest in its installation, and servicing for the satisfaction of the customer, and his own advertising purposes, but without the knowledge or authority of defendant. Defendant had the plant installed, and Young was present and took part, outside the scope of his employment. Later the customer notified Young that it was not working, and he in turn notified defendant at its office in Birmingham. Defendant had no office in Mobile, and Young reported to the Birmingham office, by which he was employed and to which he reported. The Birmingham office at once sent a man by truck of its own to Mobile to render the service. That was the customary method of handling such a situation. The man sent was an...