St. Louis-San Francisco Ry. Co. v. Robbins

• Decision Date: 06 June 1929
• Docket Number: 6 Div. 313.
• Citation: 123 So. 12,219 Ala. 627
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. ROBBINS.
• Court: Alabama Supreme Court

123 So. 12

219 Ala. 627

ST. LOUIS-SAN FRANCISCO RY. CO. v. ROBBINS.

6 Div. 313.

Supreme Court of Alabama

June 6, 1929

Rehearing Denied June 27, 1929.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for personal injuries by Mozelle Robbins against the St. Louis-San Francisco Railway Company and Raleigh Benton. From a judgment for plaintiff, defendant Railway Company alone appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Sayre and Brown, JJ., dissenting.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

Ewing Trawick & Clark, of Birmingham, for appellee.

THOMAS J.

The suit for personal injury was against the master and its servant acting for it at the time of the injury. The verdict and judgment were such as there was no application of the rule of Walker v. St. Louis-San Francisco Ry. Co., 214 Ala. 492, 108 So. 388, as the judgment was against the agent and principal, and the railroad company is the sole appellant, on a summons and severance as to the other defendant, Benton.

It is conceded that whether Benton was negligent in the operation of the car was for the jury, but appellant contends that upon the undisputed evidence it is, as a matter of law, not liable for the act of Benton. The position of appellant is thus stated: The master of a boy employed to deliver messages and to perform errands with the use of a bicycle is not liable under the doctrine of respondeat superior for the unauthorized and unnecessary act of the boy, who, of his own volition and for his own purpose, hires an automobile without the knowledge or consent of the employer, and negligently operates it to the injury of a third person. Wells v. Henderson Land Co., 200 Ala. 262, 76 So. 28, L. R. A. 1918A, 115; Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727; Alabama Power Co. v. Watts, 218 Ala. 78, 117 So. 425; 18 R. C. L. p. 7923, §§ 248-252; 6 Labatt (2d Ed.) § 2276.

The test of liability in such a case is whether the act was one within the scope of the employment, and this stimulates to the inquiry of the relation of the act to the employment in respect of its character; and such case must be determined with a view to the surrounding facts and circumstances, as those of the character of the employment, its instrumentalities and agencies, and the nature of the wrongful act. Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A. L. R. 1387; United States Fid. & Guaranty Co. v. Millonas, 206 Ala. 150, 89 So. 732, 29 A. L. R. 520; 18 R. C. L. p. 796, § 254; 39 C.J. pp. 1282, 1283; 26 Cyc. 1533. The foundation of such liability lies in the duty to so conduct one's affairs as not to injure another. Cook v. D. H. Mellown & Co., 212 Ala. 41, 101 So. 662.

The general authorities are to the effect that the cases on liability of master for the acts of servants may be classified as: (1) When the opportunity to commit the injury is afforded by the position of the employee and the duties he is called upon to perform in his employment. T. C. I. & R. Co. v. Rutledge, 196 Ala. 59, 71 So. 990; Addington v. Amer. Casting Co., 186 Ala. 92, 64 So. 614; Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727; Ill. Cent. Co. v. Johnston, 205 Ala. 1, 87 So. 886; Jebeles-Colias Conf. Co. v. Booze, 181 Ala. 456, 62 So. 12; Miller-Brent Lbr. Co. v. Stewart, 166 Ala. 658, 51 So. 943, 21 Ann. Cas. 1149; Steel v. May, 135 Ala. 483, 33 So. 30; McCormack Bros. Co. v. Holland, 218 Ala. 200, 118 So. 387; Ala. Power Co. v. Watts, 218 Ala. 78, 117 So. 425; Ford v. Hankins, 209 Ala. 202, 96 So. 349. (2) The dangerous character of instrumentalities, appliances, or physical agencies that are placed by the employer in the hands or under the direction and control of the employee, as when intrusted with a wagon exchanged it for a motor truck without authority. Cook v. D. H. Mellown & Co., 212 Ala. 41, 101 So. 662; Ill. Cent. Co. v. Johnston, 205 Ala. 1, 87 So. 866; Emison v. Wylam Ice Cream Co., 215 Ala. 504, 111 So. 216; Stephens v. Walker, 217 Ala. 466, 117 So. 22, 25; McCormack Bros. Co. v. Holland, supra; Rooks v. Swift, 210 Ala. 365, 98 So. 16; 6 Labatt's Master & Servant, § 2292. And (3) authorization, express or implied. Jebeles & Colias Conf. Co. v. Booze, 181 Ala. 456, 460, 62 So. 12; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.) 653; Birmingham Ledger Co. v. Buchanan, 10 Ala. App. 527, 536, 65 So. 667, and authorities; Steel v. May, supra, Miller-Brent Lbr. Co. v. Stewart, supra; Supreme Lodge v. Kenny, 198 Ala. 332, 73 So. 519, L. R. A. 1917C, 469; Seaboard Air Line Ry. Co. v. Glenn, 213 Ala. 284, 104 So. 548; Emison v. Wylam Ice Cream Co., supra.

The general rule of responsibility, as stated by this court, is that, if the act resulting in the injury complained of was within the scope of the servant's employment, the master will be liable thereof, although the act was in violation of the master's instructions as to the method of performing the work, or contrary to instructions, or expressly forbidden by him. Burger v. Peerless Lumber Co., 197 Ala. 470, 73 So. 77, where mistake and negligence in loading and using an elevator resulted in injury to the sprinkler system; Republic I. & S. Co. v. Self, 192 Ala. 403, 406, 68 So. 328, L. R. A. 1915F, 516, where the servant, to gratify his own resentment, stepped aside from his employment to abuse another; Birmingham Macaroni Co. v. Tadrick, 205 Ala. 540, 88 So. 858; Shope v. Alabama F. & I. Co., 195 Ala. 312, 70 So. 279; Hardeman v. Williams, 169 Ala. 50, 53 So. 794; T. C. I. & R. Co. v. Rutledge, 196 Ala. 59, 71 So. 990; New Morgan County B. & L. Co. v. Plemmons, 210 Ala. 286, 98 So. 12, where the officers, agents, or foremen in charge or in the furtherance of the master's business made arrest of or assault upon the trespasser, etc.; Supreme Lodge v. Kenny, 198 Ala. 332, 73 So. 519, L. R.

A. 1917C, 469, proceeding upon the theory of apparent authority under the evidence; United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A. L. R. 520, where the act was settlement of a claim for insurance, and to that end sought discharge of the claimant. In Wells v. Henderson, 200 Ala. 262, 76 So. 28, L. R. A. 1918A, 115, there was murder by the foreman in a quarrel that arose from the use of abusive language. Cook v. D. H. Mellown & Co., 212 Ala. 41, 101 So. 662, held one hired to drive a wagon and deliver groceries was not acting within the scope of his employment while driving a motor truck, which he took without the employer's knowledge or consent; and in Emison v. Wylam Ice Cream Co., 215 Ala. 504, 111 So. 216, it was held the master's nonliability-under the respondeat superior rule-for negligence of one employed by a servant did not absolve the master from liability for intrusting dangerous instrumentality to his servant, who in the course of the business intrusts the particular instrumentality and service to a third person, who causes injury therewith; Stephens v. Walker, 217 Ala. 466, 117 So. 22; 54 A. L. R. 849 et seq.

And Labatt says (volume 6 [2d Ed.] p. 6921 et seq.): "The master cannot be held liable where it appears that the management of the vehicle or riding horse which inflicted the injury was neither a function with which the servant was intrusted by the terms of the contract of hiring, nor a function which, whether on the ground of an emergency or for some other special reason, he was impliedly authorized to assume at the time when the injury was inflicted. If the vehicle which caused the plaintiff's injury belonged to a person other than the servant's master, the master's liability will depend upon whether the servant was authorized, expressly or impliedly, to hire or borrow it for the purpose of performing his prescribed duties." Sections 2276, 2296.

In Wells v. Henderson Land Co., 200 Ala. 262, 76 So. 28, L. R. A. 1918A, 115, is quoted, as the rule that has not been departed from, the declaration by Judge Stone to the effect: "In Gilliam v. S. & N. A. R. Co., 70 Ala. 270, it was declared: 'If the agent, while acting within the range of the authority of his employment, do an act injurious to another, either through negligence, wantonness, or intention, then, for such abuse of the authority conferred upon him, or implied in his employment, the master or employer is responsible in damages to the person thus injured. But, if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master or employer is not."'

In Goodloe v. M. & C. R. R. Co., 107 Ala. 233, 240, 18 So. 166, 167, 29 L. R. A. 729, 54 Am. St. Rep. 67, it is declared: "It is said, on the point under consideration that the rule of the responsibility of the master for the acts of his servant, 'does not apply simply from the circumstance that at the time when the injury is inflicted the person inflicting it was in the employment of another; but that, in order to make the...