Hackney v. Dudley

• Decision Date: 15 June 1927
• Docket Number: 6 Div. 727
• Citation: 216 Ala. 400,113 So. 401
• Parties: HACKNEY v. DUDLEY.
• Court: Alabama Supreme Court

113 So. 401

216 Ala. 400

HACKNEY v. DUDLEY.

6 Div. 727

Supreme Court of Alabama

June 15, 1927

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Curtis Dudley against J.T. Hackney, doing business as J.T Hackney & Co. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Logan &amp Merchant, of Birmingham, for appellant.

Barber & Barber, of Birmingham, for appellee.

SOMERVILLE J.

The amended complaint sufficiently informed the defendant of the place where the collision complained of occurred. Bugg v Green (Ala.Sup.) 110 So. 718, where all the cases are reviewed. Moreover, the evidence shows that the defendant could not have been prejudiced even had the pleading been technically deficient in this respect.

The defendant's testimony shows clearly and conclusively that, although the truck that injured plaintiff was in the custody of Hambright, and was driven and used by him, and that defendant exercised no control over the manner, or the occasions, or the details of its operation, yet defendant furnished the truck to Hambright for use in the prosecution of a joint enterprise for their common advantage, the profits of which were to be shared by them in preagreed proportions.

The case of Stroher v. Elting, 97 N.Y. 102, 49 Am.Rep. 515, perfectly illustrates the principle that governs. Affirming the liability of the defendant for injury by his wagon, done to the plaintiff while being driven by one McCann, the court, per Danforth, J., said:

"The team was owned by the defendant, its driver was one McCann, the business transacted with it was the carriage of passengers, and the defendant testifying, in his own behalf concerning the relation between McCann and himself, said, in substance, that the arrangement was that he would furnish the team and equipments, and take care of them, and McCann gather the passengers and collect their fares, which were to be divided in the proportion of three-quarters to himself and one-quarter to McCann. In face of these facts the appellant contends that the relation was not that of master and servant, which may be conceded, and also argues that there was no partnership between them, and assuming that to be so, insists that there can be no liability on the part of one for the other's act, and we must hold that way or the appeal fails. It is clear, however, that there was a contract relation between them. They undertook to engage together in a money-making occupation, to which one contributed as capital the horses, harness and wagon, and food and care for the team, and the other his personal services. The reward of each was to be derived from the avails of the business as such, and not by way of compensation either for services or use of property. As to third persons, therefore, within rules too well settled to permit discussion, each became the agent of the other in the prosecution of the common enterprise, and liable for his omissions and faults in regard thereto. Champion v. Bostwick, 18 Wend. 175 ; Legget v. Hyde, 58 N.Y. 272; same case, 17 Am.Rep. 244; Roberts v. Johnson, 58 N.Y. 613."

The case of Bonfils v. Hayes, 70 Colo. 336, 201 P. 677 is in accord. See, also, 33 Corpus Juris, 873, § 102. Our own case of Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, is...