Jones v. Strickland

Decision Date15 November 1917
Docket Number8 Div. 55
CourtAlabama Supreme Court

Rehearing Denied Dec. 24, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Julian W. Strickland, by next friend, against J.T. Jones. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6. Affirmed.

Callahan & Harris, of Decatur, for appellant.

E.W Godbey, of Decatur, for appellee.


Appellee is a minor, being 11 years of age; and he sues, by his next friend, to recover damages for personal injuries received in consequence of a collision between plaintiff's bicycle which he was riding at the time, and an automobile of the defendant.

The collision occurred in a public street in the city of Decatur. The automobile was being driven by one of two negroes, one of whom was the agent or servant of the defendant, his chauffeur; the other negro was not an agent or servant of the defendant; he having been picked up by defendant's chauffeur. He was riding in the automobile at the permission of defendant's chauffeur, but not that of defendant's.

Some of the counts upon which the trial was had ascribed the actionable negligence to the defendant's chauffeur in the operation of the car, while others ascribed it to the negligence of the chauffeur in intrusting the operation of the car to the other negro, who was alleged to be a person inexperienced in the operation of automobiles.

The trial was had on the general issues to counts 1, 2, 3, and 4, each attempting to set up the same cause of action, in varying language, substantially as indicated above.

The sufficiency of each count was challenged by demurrer containing various grounds. The demurrers were overruled as to each of these counts; and as to each of these rulings the defendant separately assigns errors on this appeal. The same question of law, however, is raised by each assignment; that is, whether or not the counts sufficiently alleged that the defendant's chauffeur, at the time of the injury, was acting within the scope of his authority or employment. Each of the counts alleged with sufficient certainty that the person to whom the negligence was ascribed was, at the time of the injury, the agent and servant of defendant, to whom the operation of the machine was then and there intrusted. This prima facie shows that he was, at the time of the injury, acting within the scope of his employment. The evidence to establish the relation, or to show that he was, in the very negligent act complained of, acting within the line and scope of his authority, need not be set out. In Herndon's Case, 114 Ala. 214, 21 So. 437, the same question was raised, as applying to the engineer who was in charge and control of defendant's engine; and it was said:

"An engineer, who is in the employment of a railway company and in charge and control of an engine, which he is at the time running over a track of the company, is prima facie in the discharge of his duties as engineer under such employment."

The two cases are not different in principle; the averment in the Herndon Case being:

"And the plaintiff avers that the said engineer was then and there in the employment of the said defendant and in charge and control of said engine."

This much, and more, was averred in each count of this complaint. If there could be said to be any difference as to the requisites of averments when the agency inflicting the injury is a private instead of a public one, it could be replied that the railroad in question, the agency, in Herndon's Case, was a private road, and not a public one.

The counts, we hold, sufficiently showed that the negligent acts complained of were within the scope of the agent or servant's employment.

It is not necessary to allege that the negligent act complained of was in the interest of the master, or that it was in the prosecution of the business of the master. The act may be within the scope of the agent or servant's authority, and yet not be in the interest of the master or in the prosecution of the master's business. This difference has been often pointed out by this court. It was well expounded by Coleman, J., in Wildman's Case, 119 Ala. 570, 571, 24 So. 764, 766, where it was said:

"There is no doubt that the principal is liable for the acts of the agent done in the interest of and in the prosecution of the business of the principal, if acting within the scope of his employment, and there are many decisions to this effect. We are of opinion the terms are not the equivalent of each other. 'Scope,' as here used, signifies the 'extent,' 'sweep,' of his authority, and is not limited to acts done in the 'interest of,' or 'prosecution of the business of the employer.' The words 'interest of,' or 'prosecution of the business of,' naturally would impress the average juror with the idea, that if the act was not done with the purpose or intent to promote the interest of, or in furtherance of, the business of the employer, the employer could not be held liable. Certainly such a rule would restrict the liability of the employer within too narrow a compass. An employé who is given authority to eject trespassers riding upon a train acts within the scope of his authority when he ejects any person from the train, whether the person be of the class designated or not, and whether such acts, strictly speaking, be in the interest of the employer or not. The employer is liable for the willful, tortious acts of his servants, done within the scope and range of their employment, although the particular act was not authorized. Williams v. Hendricks, 115 Ala. 277 [22 So. 439, 41 L.R.A. 650, 67 Am.St.Rep. 32]."

In the case last above cited, it was said:

"The rule is well settled, at least in this state, that the master is liable for the willful tortious acts of his servants done within the scope and range of his employment, although the particular act was not authorized by the master. The rule as here declared was at first limited to actions against railroads. Gilliam v. S. & N.A.R.R. Co., 70 Ala. 268. But if sound as to railroads, there seems to be no good reason why it should not apply, under like circumstances, in all cases of respondeat superior, or to a partner acting for and within the scope of the business. Lilley v. Fletcher, 81 Ala. 234 ; A.G.S.R.R. Co. v. Frazier, 93 Ala. 45 [9 So. 303, 30 Am.St.Rep. 28]; Kansas City, M. & B.R.R. Co. v. Higdon, 94 Ala. 286 [10 So. 282, 14 L.R.A. 515, 33 Am.St.Rep. 119]." 115 Ala. 282, 283, 22 So. 439, 440 (41 L.R.A. 650, 67 Am.St.Rep. 32).

If the master, in such cases, is liable as for the wanton or willful act of his servant, a fortiori is he liable as for acts of simple negligence.

We must not be understood, however, as holding that the owner of an automobile is liable for every injury inflicted by his chauffeur when operating his car. To make him liable, the chauffeur must be his agent at the time of inflicting the injury, and must be acting within the scope of his authority. For example, if a chauffeur should steal out his employer's automobile and use it for the purpose of "joy riding," exclusively for himself and not for the employer, so that the relation of principal and agent for the time does not exist, the employer would not, in such case, be liable for either simple negligence, or wanton or willful wrong, on the part of the chauffeur. To fix liability, the relation of principal and agent, or of master and servant,...

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