Perfection Mattress & Spring Co. v. Windham

• Decision Date: 09 June 1938
• Docket Number: 6 Div. 270.
• Citation: 236 Ala. 239,182 So. 6
• Parties: PERFECTION MATTRESS & SPRING CO. v. WINDHAM.
• Court: Alabama Supreme Court

182 So. 6

236 Ala. 239

PERFECTION MATTRESS & SPRING CO. v. WINDHAM.

6 Div. 270.

Supreme Court of Alabama

June 9, 1938

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Suit for damages for personal injury by Allen Windham, a minor, by his next friend, Cleve W. Windham, against the Perfection Mattress & Spring Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

J Chandler Burton, of Birmingham, for appellant.

Wm. S Pritchard and Aird & Fox, all of Birmingham, for appellee.

GARDNER Justice.

The defendant mattress company (to so designate it for brevity) owned a truck with a flat body extending over the fenders. Plaintiff, a boy seventeen years of age, was seated on the body of the truck with his feet hanging over the sides, when, in going through an underpass in Birmingham, it was run too close to the wall, resulting in rather serious injury to plaintiff's knees.

Plaintiff's complaint is based upon the theory that he was an invitee of defendant, and was injured as a result of negligence of defendant's servant or agent after discovery of plaintiff's perilous position on the truck. Jewel Tea Co. v. Sklivis, 231 Ala. 590, 165 So. 824.

Undisputably the truck was that of defendant, and attention is directed to our decisions to the effect that proof of such ownership raises a presumption that it was at the time being operated in the owner's business. Chandler v. Owens, 235 Ala. 356, 179 So. 256; Grimes v. Fulmer, 235 Ala. 645, 180 So. 321. But this is an administrative presumption only, based upon considerations of fairness and convenience in placing the burden of proof, and is not in itself evidence. And if the evidence clearly, and without conflict, shows the truck was not being so operated, and the circumstances do not support a reasonable inference to the contrary, this administrative presumption gives way and the truck owner is due the affirmative charge. Tullis v. Blue, 216 Ala. 577, 114 So. 185; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Freeman v. Southern Life Ins. Co., 210 Ala. 459, 98 So. 461; Massey v. Pentecost, 206 Ala. 411, 90 So. 866.

The driver of the truck on this occasion (one Priest) was machinist for defendant company, and not its truck driver. The time was Saturday afternoon, when the employees did not work. It appears that "the boys in the mattress department" organized a baseball team, each making a donation. Priest himself gave fifty cents a week for twenty weeks and twenty-five cents a week after that. There were "fifty or seventy-five other boys who did the same thing." The defendant company also made contributions to a total of three hundred dollars. Priest was elected by members of the team as the manager. Defendant had nothing to do with such selection, nor with the purchase or handling of the equipment, Priest attending to all such matters. One English was defendant's manager. He had the baseball fund under control and took from the pay roll the several weekly contributions of the employees, and as Priest purchased equipment English would issue the checks from this fund. The team would practice after work hours, and the scheduled games were played on Saturday afternoon after working hours. Defendant's officials did not frequently go with the team on these trips, but once or twice when they did go, they used their own or company cars. As to the matter of transportation for the team, "it was done through the mattress department, boys spoke to Mr. Jackson (defendant's president, we interpolate), and he agreed to loan us a truck through the shipping department, of which Mr. Buffington was the head. Mr. Buffington let us have the truck. * * * We would carry the players, bats and balls, and things like that, and maybe one or two boys at the plant would come along. When we got through and took the team back, I would take the truck and leave it at home. I would take it home and Monday morning when I went back to work * * * and usually I would get over in time for them to use it on Monday. There was no particular rule about that, as long as they had it there in time for work on Monday." The ball team was composed partly of employees of defendant and partly of others not so employed. Perhaps about evenly divided. But no one received compensation. The scheduled games were played before spectators averaging in number from two hundred to one thousand. The team was entered in the City League, and one of the rules "is that teams cannot be paid and retain their amateur status." After one of the games Jackson and Thompson, officials of the company, gave the team a dinner, or, as described, "a little banquet." No official of defendant assisted the manager in the supervision of the ball team.

On this Saturday afternoon when plaintiff was injured, the truck, driven by Priest, the manager of the team, was on its way for a scheduled game. They were on no business of defendant, but to engage in a pastime of their own after working hours. Of course defendant company's organization bore no relation to baseball, and we think it clear enough the foregoing facts disclose that defendant's employees were in no manner acting within the line and scope of their employment in thus engaging in a well known and popular sport.

Plaintiff seeks to hold defendant liable upon the doctrine of respondeat superior, which "applies only when the relation of master and servant 'is shown to exist between the wrongdoer and the person sought to be charged for the result of some wrong or neglect at the time and in respect to the very transaction out of which the injury arose.' " Powers v. Williamson, 189 Ala. 600, 66 So. 585, 587; 39 Corpus Juris 1268.

The above noted facts considered, the sport thus indulged in by the employees bore no more relation to defendant's business than the playful act of the superintendent in Western Ry. v. Milligan, 135 Ala. 205, 33 So. 438, 93 Am.St.Rep. 31, or the somewhat similar, though more serious, conduct of a fellow servant in Kirby v. Louisville & Nashville R. R. Co., 187 Ala. 443, 65 So. 358, or in the number of other instances of like character found in the notes to Goupiel v. Grand Trunk Ry. Co., 30 A.L.R. 690.

As often stated in our cases, the act must be not only within the scope of his employment, but also committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer. Illustrative cases are Wells v. Henderson Land & Lumber Co., 200 Ala. 262, 76 So. 28, L.R.A.1918A, 115; Republic Iron Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516. And much discussion of the essential elements of the relationship of master and servant is found in General Exch. Ins. Corporation v. Findlay, 219 Ala. 193, 121 So. 710; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74. The cases of Harrington v. Border City Mfg. Co., 240 Mass. 170, 132 N.E. 721, 18 A. L.R. 610, and Easler v. Downie Amusement Co., 125 Me. 334, 133 A. 905, 53 A. L.R. 847, concerned baseball played by employees out of working hours, and serve to demonstrate that no liability can be fixed upon the employer on the doctrine of respondeat superior. And to like effect, considering the Workmen's Compensation Act, Smith-Hurd Stats. c. 48, § 138 et seq., is the case of Becker Roofing Co. v. Industrial Comm., 333 Ill. 340, 164 N.E. 668, concerning an injury to an employee while attending a picnic, as was the custom to create and stimulate good fellowship.

Recognizing the force of these principles, as applied to the foregoing facts, plaintiff's...