Taylor v. General Refrigeration Sales Co.

• Decision Date: 23 January 1936
• Docket Number: 1 Div. 889
• Citation: 231 Ala. 469,165 So. 572
• Parties: TAYLOR v. GENERAL REFRIGERATION SALES CO.
• Court: Alabama Supreme Court

165 So. 572

231 Ala. 469

TAYLOR v. GENERAL REFRIGERATION SALES CO.

1 Div. 889

Supreme Court of Alabama

January 23, 1936

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action for damages for personal injuries by Lonie Taylor against the General Refrigeration Sales Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Alex. T. Howard, of Mobile, for appellant.

Inge &amp Stallworth, of Mobile, for appellee.

KNIGHT Justice.

This is the second appeal in this case. General Refrigeration Sales Co. v. Taylor, 229 Ala. 479, 158 So. 314, 315.

The cause was tried on each occasion in the court below upon the plea of the general issue, and the statutes of limitations of one year. The only defense really insisted upon by the defendant in the lower court was presented by its plea of the general issue.

The question turned upon whether the driver of the car, who, it is alleged, so negligently operated it, that, as a proximate consequence of such negligence the plaintiff was caused to suffer the injuries catalogued in her complaint, was an agent or servant of the defendant, and acting at the time within the scope and line of his duties and employment.

That the evidence was sufficient to carry the case to the jury on the question of the negligence of Young, the driver of the car, and that plaintiff's injuries were proximately caused by the negligence of this driver, we are of the opinion there can be no just ground upon which to rest a doubt of any sort. Whether the driver of the car in which plaintiff was riding was also guilty of negligence contributing, proximately, to her injury, is not raised by any pleadings in the cause.

On the last trial the court, on motion of defendant, excluded all the testimony given by the plaintiff's witnesses John Fagerstrom, J.R. Ingersoll, R. Herndon Radcliffe, T.L. Smith, Louis Demeteropolis, and C.J. Burton, and later gave the general affirmative charge for the defendant. This charge was given upon the theory that the evidence wholly failed to show, by inference or otherwise, that Young, the driver of the offending car, was an agent or servant of the defendant, and acting at the time within the line and scope of his duties and employment.

On the former appeal in this case we held that there was "no conflict or conflicting tendency in the evidence but that Young was outside the scope of his employment in rendering aid to Daniels [the defendant's mechanic] and in transporting him to the work. Defendant had furnished Daniels with the means of transportation."

We further held that "all the circumstances shown in the evidence are consistent with the nature of the authority and duty which we have described as existing between Young and defendant manifested by their contract."

Justice Foster, in writing for the court on the first appeal, stated the salient facts relied upon by plaintiff to show that Young was, at the time of the accident, an agent or servant of the defendant, and acting in and about the master's business, and within the line and scope of his employment. On the trial following the reversal and remandment of the cause, the plaintiff offered further and additional evidence in an effort to show the extent and scope of the employment and duties of Young, and to show that his employment and duties were such as to create between him and the defendant the relation of master and servant, and thereby to render the defendant liable for the negligent act of Young under the doctrine of respondeat superior.

The appellant insists that this new or additional testimony was sufficient to carry the case to the jury on the question of Young's agency and the scope of his duties and employment. That it either showed that the said Young was a general agent of the defendant in the Mobile territory, engaged in the performance of his regular duties at the time of the collision, or that his acts and conduct during the years of his employment, known to the defendant, were such as to warrant a finding by the jury that the defendant had ratified such acts and conduct, or, in effect, had adopted and acquiesced in such an interpretation of the duties imposed by his contract of employment.

We have carefully read and considered all the evidence offered by the plaintiff, or otherwise appearing in the case, and relied upon to show that the relation existing between said Young and the defendant, at the time of the collision, was that of master and servant, and that in driving his car along Springhill avenue on the night of the collision and at the time the injury of the plaintiff occurred, the said Young was acting within the line and scope of his said employment or agency.

All of this new testimony is entirely consistent with the nature of the authority and duty existing between said Young and defendant as evidenced by the contract. To hold otherwise would do violence to the true meaning and...