Luquire Funeral Homes Ins. Co. v. Turner

• Citation: 178 So. 536,235 Ala. 305
• Decision Date: 27 January 1938
• Docket Number: 6 Div. 185
• Parties: LUQUIRE FUNERAL HOMES INS. CO. v. TURNER.
• Court: Alabama Supreme Court

178 So. 536

235 Ala. 305

LUQUIRE FUNERAL HOMES INS. CO. v. TURNER.

6 Div. 185

Supreme Court of Alabama

January 27, 1938

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by W.F. Turner against Luquire Funeral Homes Insurance Company for injuries sustained in an automobile collision. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Thos E. Skinner, of Birmingham, for appellant.

Taylor & Higgins, Waldrop Windham, Coleman & Seay, and Frank Parsons, all of Birmingham, for appellee.

FOSTER Justice.

This is a suit for personal injuries sustained in an automobile collision.

Appellant makes two contentions which we will discuss. The first is that it does not sufficiently appear that the driver of defendant's car, which collided with that in which plaintiff was riding as a passenger, was acting in the line and scope of his employment at the time when the collision occurred.

The driver was made a party defendant, but was stricken during the course of the trial. To prove that he was acting in the line and scope of his authority, he was called to testify as a witness for the plaintiff. Counsel on both sides seem to agree that his testimony is all there is in the record on that subject. But of course it is to be construed and given effect in connection with applicable legal presumptions. He testified that he had been employed by defendant for about four years as general field manager; that his duties were to oversee all the field men and their agents, practically all over the state. In doing so, he operated an automobile. It does not clearly appear that the automobile was owned by defendant. His evidence, which is all there is on the subject, when asked if he was "driving one of their automobiles," answered: "I was driving an automobile; yes, sir." This was not a direct answer that it was one of defendant's, and we cannot so interpret it.

The presumption which arises when the evidence shows that the car belonged to defendant, especially when driven by an employee of defendant, that he was acting in the line and scope of his employment, cannot therefore be given effect. Toranto v. Hattaway, 219 Ala. 520, 122 So. 816, and cases there cited; Alabama Power Co. v. McGehee, 228 Ala. 505, 154 So. 105, and cases cited.

But the evidence showed that the accident occurred about 7:30 in the morning; that Parker, the driver of the car which was in the collision, had left home and was going to the Norwood funeral home of defendant. He had been instructed by defendant's president the day before to pick him up at the funeral home about 8 o'clock that morning, and carry him to Montgomery to a convention of the Alabama Funeral Directors Association, which was to be held that day in Montgomery, beginning at 10:30; they were to attend it, and wanted to be on time. Defendant also had an office in Montgomery, and it was Parker's duty to take care of that office; and he had in his car some advertising literature and office supplies for that office. He was on his way to pick up Mr. Luquire, the president of defendant, as he had been directed, when the collision occurred. He had no certain hours of employment. Sometimes he would be engaged until 10 or 11 o'clock at night, and sometimes out at six in the morning.

Appellant invokes the principle that when an employee is on his way from home to the place of his employment he is not ordinarily then engaged in the performance of his duties, since those duties do not begin until he arrives at the place of performance. But that principle has no application here. Parker had no definite place where he habitually performed his duties. His duties were to go about the state and visit the field agents and branch offices and supervise their work. He is engaged in the duties of his employment and in its line and scope as soon as he starts on a journey in their performance.

The only question here is whether the journey on which he had started was in the performance of his duties as field manager of defendant. If he and Mr. Luquire, the president of the company, had...