Koonce v. Craft

• Decision Date: 25 March 1937
• Docket Number: 8 Div. 786
• Citation: 174 So. 478,234 Ala. 278
• Parties: KOONCE et al. v. CRAFT.
• Court: Alabama Supreme Court

174 So. 478

234 Ala. 278

KOONCE et al. v. CRAFT.

8 Div. 786

Supreme Court of Alabama

March 25, 1937

Rehearing Denied June 3, 1937

Appeal from Law and Equity Court, Lauderdale County; Robt. M. Hill Judge.

Action for damages by W.L. Craft against E.R. Koonce and W.O Perritt, doing business as the Koonce & Perritt Chevrolet Company, and another. Judgment for plaintiff, and the named defendants appeal.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

A.A Williams, of Florence, for appellants.

Fred S Parnell, of Florence, for appellee.

THOMAS Justice.

The suit was for damages resulting from an automobile collision.

The assignments of error challenge the action of the trial court (1) in refusing to give the general affirmative charge, and (2) in overruling the motion for a new trial.

The suit was by W.L. Craft against E.R. Koonce and W.O. Perritt, doing business as Koonce-Perritt Chevrolet Company, and Vera Martin, the bookkeeper of said firm.

The contention of appellants is that Miss Martin was on a private mission and not within the line and scope of her employment when the collision occurred, and that her principal is not liable for any negligence on her part that contributed to such injury and damage.

The appellee, on the other hand, contends that there was evidence affording a reasonable inference that at such time and place Miss Martin was driving appellants' car and engaged in a mission for the defendant partnership.

Several propositions, established by this court, are now to be considered.

It is declared that the burden of proof is on the plaintiff, not only to show agency, but to show that the agent, at the time of the collision or injury, was acting within the line and scope of his or her authority. Many cases to this effect are collected in Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338; St. Louis-San Francisco R. Co. v. Robbins, 219 Ala. 627, 123 So. 12; Gulf Refining Co. v. McNeel, 228 Ala. 302, 153 So. 231.

It is further established that, when an agent is engaged in a service for the master, whatever is done to that end, or in the furtherance of his employment, is deemed an act done within the scope of the agent's employment. It follows that the agent's conduct must not be the result of, or impelled by, wholly personal motives, but done in the promotion of the business of his employment. St. Louis-San Francisco R. Co. v. Robbins; Jewell Tea Co., Inc., v. Sklivis, 231 Ala. 590, 165 So. 824.

The question presented for decision is whether or not Miss Martin, who was employed by defendants as bookkeeper, was sent, by express or implied authority, on an errand for that company when the accident and injury occurred? A tendency of the evidence indicated that she sometimes went on errands for the company. Does this evidence, alone, raise the administrative presumption that at the time of the accident she was acting within the line and scope of her employment? The decision in Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338, is to the contrary, holding that "In action for injuries on being struck by automobile of defendant while being driven by defendant's employee returning from his home to defendant's plant, evidence held not to establish that automobile was being used in furtherance of defendant's interests, even though warranting inference that automobile was used with knowledge or consent of defendant, and hence no recovery could be had against defendant." 219 Ala. 380, 122 So. 338, headnote 2.

This view was followed in Mobile Pure Milk Co. v. Coleman, 26 Ala.App. 402, 161 So. 826, and on petition for certiorari to the Court of Appeals (Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 434, 161 So. 829) this court, speaking through Mr. Justice Bouldin, said:

"If an employee, whose work for the time is at the plant of his company, lays down his work, and takes his company's car on a trip solely his own, which includes a trip for personal accommodation of a third person, and after completing his errand returns to his work at the plant, the entire trip, going and returning, is without the line and scope of his employment, and his employer is not liable for negligence in operation causing personal injury.

"This is the logical view, supported in principle by our own cases, also by text-writers, and the weight of authority. Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338; Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Huddy, Cyc.Auto.Law (9th Ed.) vol. 7-8, § 96, p. 261; 2 Berry, Automobiles (6th Ed.) § 1369; Fletcher v. Meredith et al., 148 Md. 580, 129 A. 795, 45 A.L.R. 474." 230 Ala. 432, 434, 161 So. 829, 830.

W.O. Perritt, one of the defendants below and one of the appellants here, testified, among other things, that "This company is a partnership composed of W.O. Perritt and E.R. Koonce. We two are the managers of the business and we had no other manager in May, 1932. Koonce and Perritt are the only members of the firm. I know Miss Vera Martin who is now Mrs. Vera Martin Stein. She was employed by our firm as bookkeeper. She was employed as bookkeeper at the time of this accident. I was not in the office at the time the accident happened, but I was in the office that morning. Miss Martin went on errands when it was necessary for me to send her. I sent her on occasions to different places and occasionally sent her out for something. Collecting was not a part of her duties as bookkeeper. She had no authority to go out and collect except on occasions when I sent her. On the day this accident happened I did not send Miss Martin on a mission with our car. I did not know she was going on a mission. I did not send her to collect anything on that day. She was not on a mission for Koonce and Perritt. I did not know of her going away with the car."

E.R. Koonce, the other defendant-appellant, testified, in part, as follows: "I had forbid the employees including Miss Martin prior to the date of this accident to use the company cars for their own business. I most positively instructed Miss Martin before this accident not to use the company cars for her private affairs. This rule was in force at the time of this accident. I do not know where Miss Martin was going at the time of the accident except from hearsay. I had not sent her anywhere, I was not even there. I had not sent her anywhere in our car on that day. I was not at the office at that time. I was there late in the afternoon. I did not know she was going anywhere in our car. Mr. Perritt and myself were the only ones in charge of the business. No one else had authority to give Miss Martin permission to use one of the company's cars on this occasion or on any other occasion."

The testimony of Miss Martin touching her authority is as follows:

"This company is owned by E.R. Koonce and W.O. Perritt. They were the owners and managers. My duties were those of a bookkeeper and

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