Southern Garage Co. v. Brown

• Decision Date: 14 May 1914
• Docket Number: 815
• Citation: 65 So. 400,187 Ala. 484
• Parties: SOUTHERN GARAGE CO. v. BROWN.
• Court: Alabama Supreme Court

65 So. 400

187 Ala. 484

SOUTHERN GARAGE CO. v. BROWN.

No. 815

Supreme Court of Alabama

May 14, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by W.S. Brown for the use of the Southern States Fire &amp Casualty Insurance Company, against the Southern Garage Company, to recover money paid under protest, the same having been furnished by said insurance company. Judgment for plaintiff, and defendant appeals. Affirmed.

The substance of the complaint was that defendant operated a garage in the city of Birmingham, and, in connection with its other business, cared for, repaired, delivered, and called for its customer's automobiles; that plaintiff had a contract with defendant, whereby among other duties defendant was to call for plaintiff's car when requested to do so and to carry its said car to its garage, to be there kept until called for by plaintiff; that on April 8, 1911, or about that date, plaintiff requested defendant to send to his residence and get a said car; and that one of defendant's employés did call for and take away said car, and, shortly after leaving plaintiff's residence, said employé of defendant so negligently operated said car that as a proximate consequence thereof he ran into a team of mules killing one of the mules and injuring the other, and greatly damaging plaintiff's automobile. Plaintiff averred that the Southern States Fire & Casualty Insurance Company, with whom plaintiff had a policy of insurance on plaintiff's automobile, and for whose use its action was brought, paid the owner of said team of mules $252 in settlement of the damage suffered by the owner as a result of injuring the mules, and that plaintiff had paid to defendant under protest for repairs and new parts of said automobile, which would necessitate, by reason of the damage of said car on account of said accident, the sum of $132.87, said money being furnished plaintiff by said insurance company. And plaintiff averred that said injuries and damages were proximately caused by reason of the negligence of defendant, its servants or agents, acting in the line and scope of his employment as such in the operation of said car. The proof tended to show that on the day of the accident Mr. Brown had requested that his car be sent for, and that the Southern Garage sent Dave Whitfield, a regularly employed chauffeur of the Southern Garage, for the car, and that in taking the car back to the garage the chauffeur took it out about the cotton mill in Avondale about 2 miles east of plaintiff's residence, and about 2 1/2 miles east of the garage, and it was there or about there that the accident happened. Defendant stated that the chauffeur had no business out there for the company, and that when he took the car out there he was not acting within the line and scope of his employment. The company also admitted the repairs, and that they were necessitated by the collision. The charge made the basis of assignment of error 2 is as follows:

If you believe from the evidence that defendant's chauffeur was at the time of said accident using said automobile for a purpose of his own, then your verdict must be for defendant.

Assignment of error 3:

If you believe from the evidence that defendant instructed said chauffeur to get plaintiff's automobile, and bring it to the garage, and that after said servant got said automobile, he took the same without the knowledge or consent of defendant, and went to Avondale for a purpose of his own not connected with his employment by defendant, your verdict must be for defendant.

The record shows that during the...