Jessup v. Shaddix

• Decision Date: 30 May 1963
• Docket Number: 7 Div. 574
• Citation: 154 So.2d 39,275 Ala. 281
• Parties: W. L. JESSUP v. Erom SHADDIX.
• Court: Alabama Supreme Court

Page 39

154 So.2d 39

275 Ala. 281

W. L. JESSUP v. Erom SHADDIX.

7 Div. 574.

Supreme Court of Alabama.

May 30, 1963.

Knox, Jones, Woolf & Merrill, Anniston, for appellant.

Wilbanks & Wilbanks, Alexander City and Dempsey & Hardegree, Ashland, for appellee.

LIVINGSTON, Chief Justice.

This is an action for damages for personal injury to the plaintiff-appellee allegedly resulting from the conduct of the defendant, Douglas Coleman (not a party to this appeal), while acting in the line and scope of his employment with the defendant-appellant, W. L. Jessup, d/b/a Jessup Oil Company. The case was tried below on a single count charging simple negligence, and resulted in a jury verdict against both defendants in the amount of $2,000. Judgment was entered accordingly.

This appeal is by the defendant, W. L. Jessup, only, and the errors assigned are that the trial judge erred in refusing this defendant certain written requested charges; among these being the general affirmative charge, the affirmative charge with hypothesis, and several other charges which sought to explain to the jury the doctrine of respondeat superior as related to the case. There is but a single issue in the case, i. e., whether or not there was sufficient evidence that Coleman was acting in the line and scope of his employment to take the case to a jury.

Appellant is the owner of the Highway 280 Cafe and Truck Stop (filling station), at Hollins, Alabama. This consists of two separate buildings, some distance apart but having a common driveway. The cafe and filling station were leased to separate individuals at the time of the event here in question, but apparently appellant had some control over the operation of the gasoline station. Appellant's employee, Coleman, was in charge of the gasoline station at night. His duties were general, pumping gasoline, wiping windshields, selling oil, fan belts, oil filters, etc. He was not employed as a mechanic and did not work as one. On the night of the accident in question, business being slack, he undertook to do some work on his own personal automobile, which was parked at or near the gasoline station. This car was never used in connection with his employer's operations. In working on the car, he raised the hood and propped it open. He then proceeded to drive the car into the back of a pickup truck which was parked in front of the cafe. At the time he struck the truck, the plaintiff was just getting into it. She was knocked aside and injured.

Coleman's negligence and his employment with the appellant are admitted. The amount of damages is not questioned. Thus, the only problem before us is whether or not the trial court committed error in refusing to direct a verdict for the appellant.

To recover against the master on the theory of respondeat superior, it is incumbent upon the plaintiff to show that the act was done within the scope of the servant's employment and was committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer. Red's Electric Co. v. Beasley, 272 Ala. 200, 129 So.2d 676; Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So.2d 464; Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So.2d 490.

It is well established in this jurisdiction that where, by the undisputed evidence, the plaintiff has not shown that he is entitled to recover on his complaint, the court may direct a verdict for the defendant, and it is immaterial whether the jury believe the evidence or not. Stevens v. Deaton Truck Line, supra; Cannon v. L. & N. R. Co., 252 Ala. 571, 42 So.2d 340; O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580.

We now come to the question of what the plaintiff must show where he attempts to recover against the master for the negligence of the servant under the doctrine of respondeat superior. In Red's Electric Co. v. Beasley, 272 Ala. 200, 129 So.2d 676, we find the following:

'To recover against defendants upon the theory of respondeat superior, it was incumbent upon plaintiff to show that the act was done within the scope of Bodiford's employment and was committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer. Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So.2d 490; Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So.2d 323.'

It is true that in the above-cited case there was an administrative presumption that the servant was acting within the line and scope of his employment because the vehicle driven by the servant at the time of the accident was treated as belonging to the master. In the instant case, the undisputed testimony is that the car driven by the servant...