Summary
In Donaldson v. Foreman, 213 Ala. 232, 104 So. 406, this court held that the trial court erred in overruling a similar objection under similar circumstances because it "tended to impute blame to defendant for the acts of his son driving his car."
Summary of this case from Burress v. DupreeOpinion
4 Div. 201.
April 16, 1925. Rehearing Denied May 28, 1925.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
E. O. Baldwin, of Andalusia, for appellant.
The principal is not responsible for the acts of his agent, unless committed in the line and scope of employment. Morrison v. Clark, 196 Ala. 670, 72 So. 305. Defendant was entitled to the affirmative charge. Acts 1911, p. 642, § 20; Standard Oil Co. v. Carter, 210 Ala. 572, 98 So. 575.
A. Whaley, of Andalusia, for appellee.
Counsel discuss the questions raised, but without citing authorities.
The suit was for damages to an automobile, sustained in a collision with another automobile. The pleadings were in short by consent.
The demurrer to the complaint challenged its sufficiency on the grounds that it was not averred that the agent or employee of defendant, having charge or control of said car, was acting within the line and scope of his employment, that the grounds of recovery are disjunctively averred, and that each alternative averment is not sufficient to support a recovery on the facts averred as showing actionable negligence.
It is settled law that the principal is not responsible in damages for the acts or omissions of him who is his agent, servant, or employee, unless at the time of the injury such person was acting within the line and scope of his employment by the defendant. Morrison v. Clark, 196 Ala. 670, 673, 72 So. 305; Alabama Power Co. v. Conine, 207 Ala. 436, 93 So. 22; Alabama Power Co. v. Stogner, 208 Ala. 666, 669, 95 So. 151. And it is required that the proof must also support this necessary averment to sustain a verdict predicated on such agency. Rooks v. Swift Co., 210 Ala. 364, 98 So. 16.
It is also required, as a necessity of good pleading, that, where a complaint sets out the grounds of recovery in the disjunctive, each alternative allegation must be sufficient. National Park Bank v. L. N. R. R. Co., 199 Ala. 192, 74 So. 69. In this last respect it is averred, in the second count, that —
"Defendant, or his agent, servant, or employee, while in charge of and operating the automobile of defendant over, along, and about the public highways, * * * did wantonly or willfully run, or so operate, said automobile that said automobile ran against, hit, or struck the automobile of the plaintiff."
The alternative averment, "or struck the automobile of the plaintiff," must be taken in its context so as to refer to the averment of wantonly or willfully running or operating, etc. It was not subject to the demurrer that both alternative averments did not state a cause of action.
The questions, sought to be presented by assignments of error predicated on rulings of the lower court on demurrer, are emasculated by the record certified upon return to certiorari. There it is shown the demurrers were not insisted upon; and it is not shown that rulings of the court were directed thereto.
The evidence shows that defendant Donaldson was not present at the collision. In response to the question, "Go ahead and tell the jury just your recollections, the substance of what was said," referring to the subsequent conversation between plaintiff and defendant, plaintiff's witness Clark answered, "I remember Mr. Donaldson agreeing to have something done to repairing Mr. Foreman's car." The defendant had objected, and he then moved to exclude on the ground that the evidence called for was illegal, irrelevant, incompetent, and immaterial. In overruling the objection to the foregoing question and the motion to exclude the answer, the court committed error. It tended to impute blame to defendant for the acts of his son driving his car.
The lower court committed no error in permitting it to be shown that Foreman paid for the repair of the damages to his own car — the word "damages" meaning in the context the repair bill. It was merely one step in proving the reasonable and necessary expense in restoring the car to its former condition. Burton Sons Co. v. May (Ala. Sup.) 103 So. 46; Hill Gro. Co. v. Caldwell, 211 Ala. 34, 99 So. 354; Mobile L. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837; Southern Ry. Co. v. Reeder, 152 Ala. 227, 44 So. 699, 126 Am. St. Rep. 23.
The witness Watson had qualified as an expert in the matter of automobiles and the repair thereof, and was prepared to answer "whether or not in your [his] judgment, if it was possible to put that car in as good condition after the wreck as it was before." Hill Gro. Co. v. Caldwell, supra. This was relevant on the question of value before and after the injury. Mobile L. R. Co. v. Gadik, supra.
The testimony was in conflict as to liability vel non. The instant facts show a case of two cars meeting while approaching each other, and not a case of a car attempting to pass another from the rear. Morrison v. Clark, 196 Ala. 670, 72 So. 305; Standard Oil Co. v. Carter, 210 Ala. 572, 98 So. 575. Hence section 20, p. 642, of Acts 1911, did not apply. The affirmative charge was properly refused. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.