Thomas v. Hackney
| Decision Date | 15 April 1915 |
| Docket Number | 12 |
| Citation | 68 So. 296,192 Ala. 27 |
| Parties | THOMAS v. HACKNEY. |
| Court | Alabama Supreme Court |
Appeal from Birmingham City Court; John C. Pugh, Judge.
Assumpsit by J.T. Hackney against Fred Thomas. Judgment for plaintiff and defendant appeals. Reversed and remanded.
Transferred from the Court of Appeals under section 6, p. 449, Acts 1911.
The complaint is for work and labor done and upon an account stated. Defendant set up that plaintiff had possession of an automobile, the property of defendant, as bailee, to repair the same, and while in such possession had the car on the public streets of Birmingham, Ala., operating the same for his own purposes, at which time the said car was run into by another automobile, without fault on the part of defendant and was damaged in amount and excess of the sum claimed by defendant in this cause, to wit $383, and that the sum claimed by plaintiff in this case is the value of his labor in repairing the automobile after said collision, and restoring it to the condition in which it was previous to said collision, as it was the duty of plaintiff to do without cost to the defendant, which sum defendant offered to set off against the sum claimed, and claims judgment for the excess. The effect of plaintiff's evidence was that defendant had acquired the automobile from plaintiff in an exchange, and that he returned to plaintiff with the automobile, complaining that something was wrong, and requesting plaintiff to examine it, plaintiff being a skilled mechanic and automobile repairer, and that after adjusting parts of the machine which he found to be out of order, and in order to test the effect of what he had done in adjusting the automobile, defendant, at the direction of plaintiff applied the motive power to the machine, and the engines raced very rapidly, and the gear wheels were stripped, and that defendant left the automobile at the curb at plaintiff's place of business, plaintiff undertaking, if defendant would procure the new gear, he would put it into the automobile free of charge, and that after putting in the new gear plaintiff and his helper got into the automobile to take a test trip through the streets of the city of Birmingham, whereupon a collision happened, as a result of which defendant's car was badly demolished, and that at defendant's request he repaired the automobile after the collision. The defendant's testimony was in line with the plea above set out.
A. & F.B. Latady, of Birmingham, for appellant.
Charles J. Dougherty, of Birmingham, for appellee.
The plaintiff received the car from the defendant to repair same gratuitously, and the proof shows that it was injured while he was riding in same for the purpose of ascertaining whether or not the repairs he undertook to make, and had made, were successful. If this was true, and which is not disputed, the trial trip was but incidental to the repair, and the said trial trip was solely in the...
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...496; Medes v. Hornbach, 56 App.D.C. 13, 6 F.2d 711. 5Dalton v. Hamilton Hotel Operating Co., 242 N.Y. 481, 152 N.E. 268; Thomas v. Hackney, 192 Ala. 27, 68 So. 296; Alex W. Rothschild & Co., Inc., v. Lynch, 157 La. 849, 103 So. 188; Myers v. Summerville, 90 W.Va. 486, 111 S.E. 487. Cf. Falc......
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