Mobile Pure Milk Co. v. Coleman

• Decision Date: 30 May 1935
• Docket Number: 1 Div. 871
• Citation: 161 So. 829,230 Ala. 432
• Parties: MOBILE PURE MILK CO. v. COLEMAN.
• Court: Alabama Supreme Court

161 So. 829

230 Ala. 432

MOBILE PURE MILK CO. v. COLEMAN.

1 Div. 871

Supreme Court of Alabama

May 30, 1935

Certiorari to Court of Appeals.

Petition of the Mobile Pure Milk Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Mobile Pure Milk Co. v. Thelma Coleman,161 So. 826.

Writ denied.

Wm. H Cowan and Geo. S. Taylor, both of Mobile, for appellant.

Gordon Edington & Leigh, of Mobile, for appellee.

BOULDIN Justice.

This court will not review the Court of Appeals on its finding of facts, either as to the tendencies of the evidence, or upon the effect of the evidence in considering the giving or refusing of the affirmative charge by the trial court, or the weight of the evidence on review of a ruling on a motion for new trial.

The general rule is that this court will not review the ruling of the Court of Appeals in its application of the law to the facts.

Postal Telegraph-Cable Co. v. Minderhout,195 Ala. 420, 71 So. 91.But if the decision of the Court of Appeals affirmatively shows a misapplication of the law to the facts as found by that court, there is presented a misconception of the law of the case, an error of law, subject to review by this court.Home Ins. Co. v. Pettit,225 Ala. 487, 143 So. 839;Fairbanks, Morse & Co. v. Dees et al.,220 Ala. 41, 126 So. 624;Rochester-Hall Drug Co. v. Bowden,218 Ala. 242, 118 So. 674;Lancaster v. State,214 Ala. 2, 106 So. 617.

In such case, if the error was the basis of the judgment of the Court of Appeals, a certiorari must be granted, unless it appear that its judgment was correct, notwithstanding such error.

In this latter event, this court may and does, if the matter is deemed of sufficient consequence in maintaining harmony of decisions, render an opinion correcting such error, although certiorari be denied.But denying the petition for certiorari without opinion by this court is not to be deemed an approval of all statements of law by the Court of Appeals.

Without reiterating the facts, we refer to the opinion of the Court of Appeals, which should be considered as a whole in this regard.

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.

While the ownership of the car raises an administrative presumption that it is being operated in the owner's business, when the evidence, clearly and without conflict, shows it was not being so operated, and the circumstances do not support a reasonable inference to the contrary, this administrative presumption, one merely for convenience in placing the burden of proof, gives way, and the employer is entitled to an affirmative instruction with hypothesis.Tullis v. Blue,216 Ala. 577, 114 So. 185.

The case of Blackmon v. Starling,222 Ala. 87, 130 So 782, holds nothing to the contrary.The rule there stated, as its language imports, has application to cases where the car is being operated in the employer's business, but the driver deviates therefrom upon a personal mission; then returns to the sphere of the employer's business.In such...