Walker v. Stephens

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 454.
• Citation: 221 Ala. 18,127 So. 668
• Parties: WALKER v. STEPHENS.
• Court: Alabama Supreme Court

127 So. 668

221 Ala. 18

WALKER v. STEPHENS.

6 Div. 454.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for wrongful death by Z. L. Stephens, as administrator of the estate of Henry Stephens, deceased against H. H. Walker, as trustee in bankruptcy of the estate of the Jefferson Dairy Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellant.

Jacobs & Carmack, of Birmingham, for appellee.

GARDNER J.

This cause has previously been before this court upon the same counts of the complaint and upon evidence in substantial accord. Stephens v. Walker, 217 Ala. 466, 117 So 22. The salient features of the evidence appear in the opinion on former appeal, and need no repetition here.

The view was here entertained, and so expressed, that a jury question was presented and intended applicable to each count of the complaint. We adhere to that view, though as to a few of the counts some elaboration is appropriate. These are the counts (count 1 among them) wherein negligence is laid to an authorized agent of defendant in the operation of the truck. The basic feature of liability in this case is the undisputed fact that, while the tank of the truck, situated as it was not far removed from the engine, was being filled with gasoline the motor was left running. From the uncontroverted proof this was dangerous, and so known to young Perryman in charge of the filling station. We think these counts were intended to have application to negligent conduct of one who brought the car to the station for gasoline and left the motor running. Perryman insists the truck was so operated by Orin Gray, a helper for the driver, and defendant insists Gray was operating it without authority.

Under the rule in this state, proof that the truck was that of defendant was sufficient to authorize the inference that the driver at the time was employed by the defendant and was acting within the scope of his employment. The presumption thus raised is rebuttable, and, if the evidence in rebuttal is undisputed, clear, and convincing, the defendant is entitled to the general affirmative charge properly requested. Ford v. Hankins, 209 Ala. 202, 96 So. 349; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816.

The driver of the truck employed Gray to assist in delivery of the milk, with the knowledge and consent of defendant. He had been so engaged for seven or eight months. The driver insists Gray was not authorized to drive the truck, but Perryman testifies Gray had brought the truck there for such purpose "every few days."

These helpers worked around the plant where defendant trustee and his superintendent could see them. They were constantly thrown in contact with each other about the dairy plant. We think the evidence sufficient for inference that driving the truck to the filling station for gasoline was a very common practice on the part of Gray, and one known to, and acquiesced in by, the defendant.

We are not persuaded the presumption raised by plaintiff's proof has been met by evidence so clear and convincing as to take from the jury the question of defendant's responsibility therefor. The affirmative charge requested upon a contrary theory was properly refused. Ford v. Hankins, supra; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Emison v. Wylam Ice Cream Co., 215 Ala. 504, 111 So. 216; Tennessee Coal, Iron & R. R. Co. v. Hayes, 97 Ala. 201, 12 So. 98.

The witness Chester was an automobile mechanic of twenty years' experience, and he was properly permitted to explain to the jury where was located the gasoline tank on this truck shown to him as the one here in question and with the model of which he was familiar. His evidence tended merely to show in what manner ignition could occur by filling the tank with gasoline while the motor was running, the details of which need not be here stated. This witness was also gasoline pump inspector for the Standard Oil Company-his territory embracing stations within one hundred miles of Birmingham. He was permitted to state that it is customary at filling stations to cut off the motor while filling the tank with gasoline. Defendant's objection to this testimony is based upon the assumption that the witness had reference to the custom only of the Standard Oil Company, and that it therefore does not come within the rule. But we do not construe his testimony as so restricted, for he not only observed and visited those of the Standard Oil Company within the radius above indicated, but "others too," and his evidence indicates a general observation. Clearly, evidence of a general custom, usage, or practice in this respect was competent upon the question of negligence or due care. 45 C.J., p. 1241; Maxwell v. Eason, 1 Stew. 514; Johnson v. Lightsey, 34 Ala. 169, 73 Am. Dec. 450; Holland v. Tenn. Coal, Iron & R. R. Co., 91 Ala. 444, 8 So. 524, 12 L. R. A. 232; Jefferson Fertilizer Co. v. Houston, 3 Ala. App. 348, 57 So. 98; Flynt Bldg. & Const. Co. v. Brown (C. C. A.)

67 F. 68.

We think also this witness was properly permitted to testify that to fill such a tank with gasoline with the motor running was dangerous. He was fully...