Rooks v. Swift & Co.

• Decision Date: 08 November 1923
• Docket Number: 7 Div. 394.
• Citation: 210 Ala. 364,98 So. 16
• Court: Alabama Supreme Court
• Parties: ROOKS v. SWIFT & CO.

98 So. 16

210 Ala. 364

ROOKS v. SWIFT & CO.

7 Div. 394.

Supreme Court of Alabama

November 8, 1923

Rehearing Denied Nov. 29, 1923.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Barbara Rooks sues Swift & Co. for damages for personal injuries alleged to have resulted from a collision between the automobile or truck of defendant and a buggy in which plaintiff, with two other persons, was riding. From a judgment for defendant, following affirmative instruction plaintiff appeals. Reversed and remanded.

E. O McCord & Son, of Gadsden, for appellant.

David S. Anderson and Dunn & Boyle, all of Birmingham, for appellee.

THOMAS J.

The suit was for personal injury sustained in collision with an automobile. The plaintiff had no direction or control over the driving of the vehicle in which she was a guest at the time of her injury. Birmingham Southern R. Co. v Harrison, 203 Ala. 284, 82 So. 534.

The record does not show a motion for a new trial, and the scintilla rule of evidence will be applied to the giving of the general affirmative charge. Penticost v. Massey, 202 Ala. 681, 81 So. 637.

In McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135 rules governing the giving or refusing of such charge are adverted to, and will not be repeated. In determining the propriety of the general affirmative charge, the evidence offered by the party against whom it is requested must be accepted as true; and if there is evidence reasonably affording an inference adverse to the right of recovery by the party asking such general charge, it should not be given. In Jones v. Bell, 201 Ala. 336, 77 So. 998, is contained the declaration that if there is material contradiction between the direct and cross-examination of a witness, this would not warrant the court in disregarding his testimony, since its credibility was for the jury.

Recent authorities of this court dealing with the liability of the master for the negligent acts of the servant in driving the master's automobile or motor truck are Penticost v. Massey, 201 Ala. 261, 77 So. 675; Jones v. Strickland, 201 Ala. 138, 77 So. 562; Penticost v. Massey, 202 Ala. 681, 81 So. 637; Dowdell v. Beasley, 17 Ala. App. 100, 82 So. 40; Id., 203 Ala. 696, 82 So. 893; 205 Ala. 130, 87 So. 18; Ætna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Bains Motor Co. v. Le Croy, 209 Ala. 345, 96 So. 483.

In Edwards v. Earnest, 208 Ala. 539, 94 So. 598, it was held:

"Where defendant's truck driver, sent a distance of four blocks to get some tires, got them, and then went out of his way to buy sugar and take it to his mother, and, while returning to his employer's place of business, injured plaintiff, held, that the question whether, at the time of the accident, he was within the scope of his employment, was for the jury." Headnote 1.

The court, in that case, said:

"The fact that this detour was made to serve the driver's own purpose-a purpose wholly unauthorized by appellant-did not itself conclusively operate to neutralize the effect of the established fact that, throughout the entire movement of the truck from Perry's place to the scene of the injury, the employee was engaged in transporting the tires for which he was sent. Notwithstanding the unauthorized detour, relatively great as it was from a route the employee would undoubtedly have taken but for his purpose to serve his own interest, the fact remained that throughout the movement from Perry's place, with the tires in the truck, the employee was serving, though disobediently in the course pursued, the object of his superior's direction to bring the tires from Perry's to appellant's place of business. *** It would, under the evidence, have involved invasion of the jury's province to have instructed the jury, as appellant sought to have done, either that the driver's conduct and course had effected to suspend his

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