Opinion
7 Div. 173.
April 7, 1921.
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
Ross Blackmon and J. B. Holman, Jr., both of Anniston, for appellant.
Court erred in overruling demurrers to the pleas. 70 Ala. 268; 81 Ala. 234, 1 So. 273; 93 Ala. 45, 9 So. 303, 30 Am. St. Rep. 28; 94 Ala. 286, 10 So. 282, 14 L.R.A. 515, 33 Am. St. Rep. 119; 201 Ala. 138, 77 So. 562, this last case particularly. It is the law of agency that the principal is liable for the tort of the agent in the performance of the business which he is employed to transact, although done without the knowledge of the principal and in violation of instructions. 2 Morawetz, Private Corporations, § 730; 3 Ala. App. 296, 57 So. 82; 10 Ala. App. 537, 65 So. 667; 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653; 62 So. 12; 201 Ala. 138, 77 So. 562; 189 Ala. 600, 66 So. 585.
Knox, Acker, Dixon Sterne, of Anniston, for appellee.
The law of respondeat superior does not apply. 3 Ala. App. 296, 57 So. 82; 201 Ala. 138, 77 So. 562; 15 La. 169, 35 Am. Dec. 194; 157 N.C. 324, 72 S.E. 1067, 46 L.R.A. (N.S.) 199; 122 S.W. 131; 162 Mass. 319, 38 N.E. 498, 27, L.R.A. 173, 44 Am. St. Rep. 359; 165 Mass. 348, 43 N.E. 100, 52 Am. St. Rep. 523; 76 Tex. 353, 13 S.W. 475; 136 Fed. 306, 69. C. C. A. 444, 70 L.R.A. 915; 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620; 189 Ala. 600, 66 So. 585.
The issues presented by the pleadings will sufficiently appear in the statement of the case. The complaint alleges that plaintiff, a small boy, was invited or induced by defendant's chauffeur to ride upon the defendant's truck, which the servant was then operating in the delivery of merchandise for the defendant, and that he fell therefrom, receiving injuries as the result of the negligence of the chauffeur. The defense set up is that the chauffeur, in inviting the plaintiff to ride upon the truck, was acting without the line and scope of his authority, and without the defendant's knowledge or consent or authority, either express or implied, and without any necessity therefor. Speaking to the principle of law applicable to cases of this character, this court, in Gilliam v. S. N. A. R. Co., 70 Ala. 270, said:
"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."
And again, in Palos Coal Co. v. Benson, 145 Ala. 664, 39 So. 727, is the following:
"The act must be, not only 'within the scope of his employment,' but also 'committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer.' "
Many of the cases bearing upon this question, and applying the principle of respondeat superior, will be found cited in the recent cases of Wells v. Henderson Land Lbr. Co., 200 Ala. 262, 76 So. 28, L.R.A. 1918A, 115, and Republic Iron Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516; but we deem a review of them here unnecessary.
We are of the opinion that the case of Powers v. Williamson, 189 Ala. 600, 66 So. 585, is more nearly in point than any other decisions of this court, and in principle, in our opinion, is decisive of this appeal. The plaintiff in that case became an occupant of the car upon the invitation of the driver, and not of the owner [the defendant], and it was held that, should it be conceded that the driver was at the time of the accident engaged in the business of the defendant, yet nevertheless, as to the plaintiff, the driver was his own master, and did not as to her occupy the position of servant of the defendant. So, in the instant case, under the pleadings, the chauffeur, in inviting the plaintiff to ride upon the truck, was acting for his own convenience and pleasure, and in such an act had stepped aside from the line and scope of his employment, for which conduct the master would not be liable.
The case of Galloway v. Perkins, 198 Ala. 658, 73 So. 956, involved the liability of an owner, himself driving the car, to an invited guest, for his own negligence, and is therefore without application here. The reference to the case of Powers v. Williamson, supra, was merely arguendo, and it must be confessed some confusion appears in the language as found in the report of the case, when the facts of the Powers Case are given careful consideration.
The general principle, as stated in Jones v. Strickland, 201 Ala. 138, 77 So. 562, to the effect that, if the agent is in fact acting within the line and scope of his employment, the principal may be held liable for his tort, notwithstanding the agent at the time was acting in disregard of instructions by the principal, is fully recognized, and not here questioned. But in the instant case there is shown a deviation from the business of the master, and not merely from the manner of performing the master's business.
The question here presented is not new, as disclosed from the numerous cases cited in the note to Dover v. Mayes Mfg. Co., 157 N.C. 324, 72 S.E. 1067, 46 L.R.A. (N.S.) 199, which fully sustain the conclusion here reached. The Dover Case, supra, is very much in point. So, also, are the following authorities: Hunter v. Corrigan, 139 Ky. 315, 122 S.W. 131, 120 S.W. 198, 43 L.R.A. (N.S.) 187; Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100, 52 Am. St. Rep. 523; Bowler v. O'Connell, 162 Mass. 319, 38 N.E. 498, 27 L.R.A. 173, 44 Am. St. Rep. 359; Canton Warehouse Co. v. School, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620; Cook v. Houston Nav. Co., 76 Tex. 353, 13 S.W. 475, 18 Am. St. Rep. 52; Kirby v. L. N. R. R. Co., 187 Ala. 443, 65 So. 358.
There is nothing in the instant case to suggest that it falls within any exception to the foregoing rule, if such exceptions exist. Our conclusion is that the trial court properly overruled the demurrers to the pleas, and the judgment should be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.