Opinion
1 Div. 818.
December 20, 1934.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Inge, Stallworth Inge, of Mobile, for appellant.
Where the undisputed evidence shows that the driver of the automobile which injured the plaintiff was an independent contractor and not the servant of the defendant, the affirmative charge should be given in favor of defendant. Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617; General Exchange Insurance Corp. v. Findlay, 219 Ala. 193, 195, 121 So. 710; Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869; St. Louis-San Francisco Railway Co. v. Robbins, 219 Ala. 627, 123 So. 12; American Railway Express Co. v. Tait, 211 Ala. 348, 100 So. 328; Republic Iron Steel Co. v. McLaughlin, 200 Ala. 204, 75 So. 962; Labatt on Master and Servant, § 18, page 56; Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721; Tennessee Coal, I. R. R. Co. v. Davis, 194 Ala. 149, 69 So. 544; Louisville N. R. R. Co. v. Williams, 199 Ala. 453, 74 So. 382; Harris v. McNamara, 97 Ala. 181, 12 So. 103; Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017; Sherman Redfield, Law of Negligence, § 160; Caldwell v. A. B. A. Railway Co., 161 Ala. 395, 49 So. 674; Tennessee Coal, I. R. Co. v. Hayes, 97 Ala. 201, 12 So. 98; Southern Railway Co. v. Lewis, 165 Ala. 555, 51 So. 746, 138 Am. St. Rep. 77; Premier Motor Manufacturing Co. v. Tilford, 61 Ind. App. 164, 111 N.E. 645, cited in 17 A.L.R. 623; James v. Tobin-Sutton Co., 182 Wis. 36, 195 N.W. 848, 29 A.L.R. 457; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149 N.E. 541, cited in 54 A.L.R. 629; Howitt v. Hopkins, 219 App. Div. 653, 220 N.Y. S. 462, cited in 54 A.L.R. 629; Dohner v. Winfield Wholesale Grocery Co., 116 Kan. 237, 226 P. 767, cited in 54 A.L.R. 630; Ramp v. Osborne, 115 Or. 672, 239 P. 112; Westcott v. Young, 275 Mass. 82, 175 N.E. 153; Goldsmith v. Chesebrough, 138 Md. 1, 113 A. 285; Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159; United States Cast Iron Pipe Co. v. Fuller, 212 Ala. 177, 102 So. 25; Freeman v. Southern Life Health Insurance Co., 210 Ala. 459, 98 So. 461; Hill v. Decatur Ice Coal Co., 219 Ala. 380, 122 So. 338; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Barton v. Studebaker Corp., 46 Cal.App. 707, 189 P. 1025, cited in 17 A.L.R. 622; Potchasky v. Marshall, 211 App. Div. 236, 207 N.Y. S. 562, cited in 54 A.L.R. 629; Simril v. Davis, 42 Ga. App. 277, 155 S.E. 790; McCraner v. Nunn, 129 Kan. 802, 284 P. 603, followed in 129 Kan. 708, 284 P. 605; Thurman v. Culberson (Tex.Civ.App.) 22 S.W.2d 525; Wooley v. Doby, 19 Ga. App. 797, 92 S.E. 295; McCarthy v. Souther, 83 N.H. 29, 137 A. 445, 449; Wesolowski v. John Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 A. 166, 87 A.L.R. 783; Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280. Admissions made by an agent after an accident are inadmissible. Alabama Power Co. v. Smith, ante, p. 105, 155 So. 601, 607; Arlington Realty Co. v. Lawson, 228 Ala. 214, 153 So. 425; Birmingham News Co. v. Browne, 228 Ala. 414, 153 So. 889; Snyder Cigar T. Co. v. Stutts, 214 Ala. 132, 107 So. 73. The disposition of a criminal case against the alleged agent of defendant is inadmissible on the trial of a suit for damages against the employer of the alleged agent based on the same occurrence. Fidelity-Phenix F. I. Co. v. Murphy, 226 Ala. 226, 146 So. 387.
Alex. T. Howard, of Mobile, for appellee.
Young was not an independent contractor, but an agent of the defendant. National Cash Register Co. v. Williams, 161 Ky. 550, 171 S.W. 162; 42 C. J. 1128; Dishman v. Whitney, 121 Wn. 157, 209 P. 12, 29 A.L.R. 460; Magnolia Pet. Co. v. Pierce, 132 Okl. 167, 269 P. 1076, 61 A.L.R. 218; Cumming v. Automobile C. S. Corp., 232 Mich. 158, 205 N.W. 133; Burgess v. Garvin, 219 Mo. App. 162, 272 S.W. 108, 114; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74; Texas Co. v. Mills (Miss.) 156 So. 866. If Young, at the time of the collision, was using his own car for the purpose of getting supper for himself and defendant's mechanic, and in so doing they were engaged in facilitating and furthering the defendant's business, the defendant is liable. Gulf Ref. Co. v. Texarkana Ft. S. R. Co. (Tex.Civ.App.) 261 S.W. 169; Duffy v. Hickey, 151 La. 274, 91 So. 733; Eckel v. Richter, 191 Wis. 409, 211 N.W. 158; Butler v. Hyperion Theatre Co., 100 Conn. 551, 124 A. 220; Snyder v. Eriksen, 109 Kan. 314, 198 P. 1080; Ferris v. McArdle, 92 N.J. Law, 580, 106 A. 460; Brennan v. J. B. White Motor Co., 210 App. Div. 533, 206 N.Y. S. 544; Id., 240 N.Y. 597, 148 N.E. 720; Chambers v. Kennedy (Mo. Sup.) 274 S.W. 726; Davis v. Jeffords-Schoenmann Produce Brokerage Co. (Tex.Civ.App.) 261 S.W. 401; Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 50 A.L.R. 1425. It having been established by defendant's own admission that Young was its agent, it was not error to allow evidence of his acts and declarations. Warren Webster Co. v. Zac Smith S. Co., 222 Ala. 41, 130 So. 545; Miller-Brent Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 Ann. Cas. 1149; Robinson Co. v. Greene, 148 Ala. 434, 43 So. 797; Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663. There was no error in admitting evidence that Young pleaded guilty to a charge of reckless driving. The authority cited by appellee is inapt.
Appellee recovered a judgment for personal injuries sustained in an automobile in which she was riding when it collided with another driven by Mr. C. W. Young, in Mobile.
The complaint alleged that at the time of the collision Young was acting in the line and scope of his employment by defendant, and so negligently operated the car he was driving as to cause the collision, and as a proximate result of which she sustained the personal injuries.
Defendant was engaged in the business of selling and distributing the refrigeration plants manufactured by General Refrigeration Company, a company distinct from defendant. Defendant had employed C. W. Young as a salesman for it. He had a certain territory in which to solicit business, and received a salary and commissions, and had a drawing allowance against his commission account. He paid his own expenses and selected his own manner of soliciting business and method of transportation. He owned an automobile which he used as occasion required, but it was in no way connected with his employment. He sometimes traveled on the trains and busses, and sometimes walked. Defendant made no suggestion or requirement about that nor as to any of the details to be observed by him. He paid all his expenses personally, including the purchase, operation, and upkeep of his car. His commission was on the amount of his sales, and defendant had no right under the contract to control the methods he used or his transportation facilities. He had no right to bind defendant by any contract of sale either for cash or on credit. They were all to be and were submitted to defendant for approval, and were so approved before they were binding.
If the injury to plaintiff had occurred in and about the sale of defendant's goods under the terms of such an arrangement, it would have imposed no liability on defendant. Our decisions are clear that Young was not such a servant of defendant as to make it responsible on the doctrine of respondeat superior. Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617; General Exchange Ins. Co. v. Findlay, 219 Ala. 193, 121 So. 710; U.S.C. I. P. F. Co. v. Fuller, 212 Ala. 177, 102 So. 25.
On February 18, 1931, before the accident on March 19, 1931, Young had obtained a contract from one Tanner near Mobile for the purchase of a refrigeration plant from defendant. It was submitted to defendant and approved by it March 9th. Mr. Young had then fulfilled his contract with defendant, and was due to be credited with his commission. He had nothing to do, under his contract with defendant, in respect to the installation of the plant or its subsequent servicing. But he did take a personal interest in its installation, and servicing for the satisfaction of the customer, and his own advertising purposes, but without the knowledge or authority of defendant. Defendant had the plant installed, and Young was present and took part, outside the scope of his employment. Later the customer notified Young that it was not working, and he in turn notified defendant at its office in Birmingham. Defendant had no office in Mobile, and Young reported to the Birmingham office, by which he was employed and to which he reported. The Birmingham office at once sent a man by truck of its own to Mobile to render the service. That was the customary method of handling such a situation. The man sent was an expert mechanic by the name of Daniels. Young was not a mechanic. Daniels engaged Young's son as an assistant. The store was about a mile from the nearest street car service. In servicing the plant at the store on this occasion, Young and his son and Daniels would often go in the car, which Young owned, and they also used the truck. On that day the three men were at the store, and had been so engaged about two days. Young did not work but he was looking after it.
Plaintiff's evidence tends to show that the three left the store in Young's car around 6 o'clock in the afternoon. That before doing so, Young called the Crane Company, in Mobile, requesting them to remain open until he reached there, that he wanted some pipe; that they left and returned about 10 or 11 o'clock that night and worked there all night. The accident happened between 7:30 to 8 p. m. on the way to the city.
The evidence for defendant tended to show that Young went for the pipe about 6 o'clock and returned with it, and about two hours later they were going back to the city for supper, and for no other purpose. On this trip, defendant's evidence tends to show, the accident occurred, when the three were in Young's car, with Young driving.
There is no conflict or conflicting tendency in the evidence but that Young was outside the scope of his employment in rendering aid to Daniels and in transporting him to the work. Defendant had furnished Daniels with the means of transportation. St. L.-S. F. Ry. Co. v. Robbins, 219 Ala. 627, 123 So. 12. The service rendered by Young in that connection was a mere courtesy and gratuity. The fact that the pipe was purchased from the Crane Company, and charged to defendant, or that Young prepared stationery showing himself to be the "representative" of defendant did not enlarge the scope of his authority, and did not mislead plaintiff into any dealings with him. 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.
It does not appear that Daniels engaged the services of Young to transport him by virtue of any authority from defendant. But it appears to have been purely a gratuity at the suggestion of Young himself so far as anything to the contrary appears.
Since the judgment is to be reversed, and a new trial had, we observe that declarations by Young, the automobile driver, subsequent to the occurrence, were not admissible against this defendant, though he was the agent of defendant, since they were not made in connection with the performance of his duties as agent in respect to that transaction, but were merely the narration of a past incident. Teague v. Alabama Coca-Cola Bottling Co., 209 Ala. 205, 95 So. 883.
This is likewise true in respect to what occurred in connection with the criminal charge against Young, in which he pleaded guilty to a charge of reckless driving.
We do not think it necessary to discuss other questions as they may not arise on another trial.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.