Mobile Pure Milk Co. v. Coleman

• Decision Date: 19 March 1935
• Docket Number: 1 Div. 188
• Citation: 161 So. 826,26 Ala.App. 402
• Parties: MOBILE PURE MILK CO. v. COLEMAN.
• Court: Alabama Court of Appeals

161 So. 826

26 Ala.App. 402

MOBILE PURE MILK CO. v. COLEMAN.

1 Div. 188

Court of Appeals of Alabama

March 19, 1935

Rehearing Denied April 16, 1935

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action for damages for personal injuries by Thelma Coleman against the Mobile Pure Milk Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Mobile Pure Milk Co. v Coleman (1 Div. 871) 161 So. 829.

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

Gordon, Edington & Leigh, for Mobile, for appellee.

SAMFORD, Judge.

The complaint was in two counts, both claiming damages from defendant by reason of the negligent operation of an automobile on the highways of Mobile county, at a point near defendant's plant, by an agent, etc., of defendant while acting within the line and scope of his employment. The point is made by demurrer that the designation of the place of the accident is too indefinite to apprize the defendant of its location. The description of the place in the complaint is "On and along the Fulton Road, one of the public highways of the City and County of Mobile, and at a point near defendant's plant on said road." This is a very different and much more specific description than was the case in Western Ry. of Ala. v. Turner, 170 Ala. 643, 54 So. 527; Alabama G.S. Ry. v. Sheffield, 211 Ala. 250, 100 So. 125, and Louisville & N.R.R. Co. v. Whitley, 213 Ala. 525, 105 So. 661. Nor are we impressed with the contention that the allegation, "The defendant, acting by and through its servant, agent or employee, and who was then and there acting within the line and scope of his employment," does not charge the defendant with the wrong alleged in the complaint. The demurrer to the complaint was properly overruled.

The principal insistence made by appellant in its brief is that the trial court committed reversible error in refusing to grant appellant's motion for a new trial on the ground that the verdict of the jury was contrary to the great weight of the evidence. The suit grew out of a collision between an automobile driven by plaintiff's husband and one driven by L.G. Barman, the manager of defendant's milk plant in Mobile, Ala. On the question of negligence vel non and liability therefor, the evidence was in conflict, and the questions arising out of this phase of the case were properly submitted to the jury.

The question of serious inquiry on this appeal is as to whether the facts justify the fixing of a liability for the injury on this appellant, the Mobile Pure Milk Company, by reason of the general agency of Barman, the manager of its plant. The facts are that Mrs. Leo Barman, the wife of Barman, defendant's manager, owned a Durant automobile, being the one Barman was driving at the time of the accident. This Durant car was used by Barman in and about the business and service of defendant as occasion might require. In serving defendant as manager, Barman had his office at the plant, and from time to time he went to various parts of the city transacting the business of defendant. The Durant car was insured in the name of defendant on the order of Barman, and defendant furnished the gas and oil to run it. Being the manager of the plant, Barman went and came at will, using his best judgment as to what he should do and when he should do his work, in furtherance of defendant's interest. There is just a scintilla of evidence tending to prove ownership of the Durant car in defendant, but evidence to the contrary is so overwhelming that we do not hesitate, in considering the motion for a new trial, to hold that the jury would not be justified, from the whole evidence, in holding that the ownership of the car was in defendant.

On the day of the accident and while Barman was in and about his duties as manager of defendant's plant and which duties were at that time at the defendant's plant, Barman's wife called him to go on a private mission with her. Answering the call of his wife, Barman stepped aside from the service of defendant to the Durant car, carried his wife where she wished to go, waited for her to finish what she had to do, and then carried her home, leaving her there, and in the car and still driving it he started back to his work at defendant's plant, and when he got to a point on the Fulton road, near the defendant's plant, and had started to turn across the road to the plant, the collision occurred. Was Barman at that time a servant, agent, or...