6 Div. 475.
November 15, 1917. On Rehearing, January 24, 1918.
Appeal from City Court of Birmingham; Robert N. Bell, Special Judge.
Bondurant Smith, of Birmingham, for appellant. Stokely, Scrivner Dominick, of Birmingham, for appellee.
The foregoing statement of the case sufficiently discloses the tendency of the evidence for the respective parties, and a general outline of the questions here presented for review. It is quite clear, of course, that the evidence for the plaintiff sufficiently identifies the car which struck his child as that used by the family of defendant, and that it was in charge of the chauffeur who had for some time been operating the same, for submission of that question to the jury for determination. Liability is sought to be fastened upon the defendant upon the principle of respondeat superior, and the two important questions in all cases of this character are: First, the existence of contractual relation of master and servant, or principal and agent; and, second, whether the act or omission, which is the basis of this particular proceeding, was one performed within the scope of the employment. Babbitt on the Law Applied to Motor Vehicles, § 547.
It is insisted by counsel for appellee that the action of the lower court was justified because of the fact that the evidence was without dispute that the defendant's wife was the owner of the car and that she alone employed and paid the chauffeur. Some of the evidence for the plaintiff, however, tended to show that the car was owned by the defendant, but the evidence of the defendant was to the effect that it belonged to his wife, having been an "anniversary gift," but by whom is not disclosed. If it be conceded, however, that the legal title was in the wife, yet we are persuaded that, under the evidence in this case, this fact would have no material bearing upon the result. The jury was authorized to find from the evidence that the car was in the defendant's possession, used and controlled by him for the pleasure of himself and family, and that although the legal title might, by virtue of the gift, be in the wife, yet full dominion and control was in the husband — the defendant here — for all purposes as to its use for himself and family.
There was evidence tending to show that the chauffeur was under the full dominion and control of, and subject to the orders of the defendant; that defendant had been seen to pay him the sum of $14 which, from the record, we think the jury could infer was for his services as such chauffeur. In addition to this, defendant himself testified that, while in fact his wife paid the chauffeur, it was out of money furnished by him as an allowance for such and other like purposes. We need not here, however, review the evidence in this connection. We are fully persuaded that it is sufficient to authorize the jury in finding that Herbert Young, the chauffeur, was at the time of this accident employed by the defendant in the operation of this particular car which the plaintiff insists struck the child. Levine v. Ferlisi, 192 Ala. 362, 68 So. 269; Patterson v. Milligan, 12 Ala. App. 324, 66 So. 914.
The next question for consideration, and the one of greater importance, is whether or not there was evidence sufficient for an inference that the chauffeur at the time of the accident was acting within the scope of his employment. It is to be noted that the court in the instant case not only gave the affirmative charge for the defendant, but directed the verdict instructing the jury to find the same, which was done without their retirement from the jury box.
In the recent case of Shipp et al. v. Shelton, 193 Ala. 658, 69 So. 102, several of our cases, concerning the action of the court in directing verdicts, are reviewed. Without again entering into a discussion of that subject, it is clearly established that if there is any evidence tending to prove a fact — no matter how slight — the court has no right to take such question from the consideration of the jury. "If there be any evidence which tends to establish the plaintiff's cause, it is error for the court to withdraw the verdict, because it is not for the court to judge of the sufficiency of the evidence."
As previously stated, the evidence for the plaintiff tended to show that the child was struck by an automobile owned and operated by defendant, and that the car at the time was being operated by the chauffeur who was employed by the defendant for that purpose.
"Where a servant, who is employed for the special purpose of operating an automobile for the master is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of. It would be a hard rule, in such circumstances, to require the party complaining of the tortious acts of the servant to show by positive proof that the servant was serving the master and not himself." Long v. Nute, 123 Mo. App. 204, 209, 210, 100 S.W. 511.
We approve the substance and logic of the foregoing quotation, although we may not approve the exact language used wherein it is said from such proof a "presumption naturally arises." We think the better expression would be that from such evidence the inference may be drawn that the servant was at the time operating the machine in the discharge of the master's business. And this is, indeed, the language used in the charge under consideration in the above-cited case of Long v. Nute.
"The fact that the defendant was the owner of the automobile, and the chauffeur was in his employ to operate it, was sufficient to make out a prima facie case that the chauffeur was acting within the scope of his employment at the time." Stewart v. Baruch, 103 N.Y. Supp. 577, 93 N.Y. Supp. 161.
See, also, Davids Law of Motor Vehicles, § 225; Huddy on Automobiles (4th Ed.) §§ 281 and 268; Benn v. Forrest, 213 Fed. 763, 130 C.C.A. 277; Christensen v. Christiansen (Tex.Civ.App.) 155 S.W. 995; Shamp v. Lambert, 142 Mo. App. 567, 121 S.W. 770; Moon v. Matthews, 227 Pa. 488, 76 A. 219, 29 L.R.A. (N.S.) 856, 136 Am. St. Rep. 902; Levine v. Ferlisi, supra; Patterson v. Milligan, supra.
In the instant case, the testimony for plaintiff was sufficient to make out a prima facie case for the jury under the rule announced in the above-cited authorities.
The rule above quoted from Long v. Nute, supra, seems to be well sustained by the authorities, and we think also by sound reason. This rule was given practical application by this court in Levine v. Ferlisi, supra. Other cases of this court of interest in this connection — though not directly in point — are, Barfield v. Evans, 187 Ala. 579, 65 So. 928; Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87; Armstrong v. Sellers et al., 182 Ala. 582, 62 So. 28.
The case of Slater v. Advance Threshing Co., from the Supreme Court of Minnesota, 97 Minn. 305, 107 N.W. 133, 5 L.R.A. (N.S.) 598, contains an interesting review of many of the authorities upon the general subject as to the liability of the master, and as to whether or not the servant was acting within the line and scope of his employment.
Counsel for appellee insists that the evidence for the defendant clearly shows that the accident did not occur while the defendant's daughters were being brought home in the car late that afternoon, and that they did not again use the car until 8 o'clock that night; the defendant's witnesses testified that they did not hear or see the chauffeur take the car out in the meantime, nor was he told to do so. All this may be conceded, and yet we do not think it would justify the court in directing a verdict for defendant. The credibility of all evidence is for the jury, and, in addition to this, the jury could infer that the chauffeur had implied authority to go upon some mission either concerning some needs of the place or in connection with his duties about the car — either as to supplies or equipment therefor — all without the knowledge of the occupants of the house at that time.
We are persuaded, upon a careful consideration of all the evidence in the case in connection with the rule of inference above noted, that it was for the jury's determination as to whether or not the chauffeur was in the employ of defendant, and at the time was acting within the line and scope of his employment. We may also cite, as of interest, in this connection — though expressing neither approval nor disapproval of the same — the recent case from the Supreme Court of Florida of Anderson v. Southern Cotton Oil Co., 74 So. 975, L.R.A. 1917E, 715.
We therefore conclude that the court committed reversible error in directing a verdict for defendant. Shipp v. Shelton, supra. For this error the judgment is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.
Counsel for appellant argue the case as if the only question involved was the giving of the affirmative charge. We think the foregoing opinion distinctly discloses that the reversal of this cause is rested upon the action of the court in directing a verdict for the defendant, and therefore leaving nothing for the determination of the jury.
The evidence on the part of the defendant was of a negative character only, and, in any event, its credibility was for the jury — the consideration of which the action of the court deprived them.
Counsel concede in brief that a chauffeur regularly employed to operate an automobile need not be directed as to every move, and that he has such implied authority, as to the control and operation of the car, as is necessary and incident to his employment, and might, of course, to quote from the brief of counsel, "take the car back and forth from the garage, and go from one point to another in order to get equipment and tools with which to make repairs, because, as stated, this will be incident to his employment."
In the instant case the chauffeur was neither examined, nor was there any evidence offered as to his whereabouts, or any explanation as to his absence. We have dealt with the case as presented by this record, wherein the court took the case from the consideration of the jury, leaving nothing for their determination as to the credibility of the evidence offered. This, we think, was clearly expressed in the opinion, where, without reviewing the authorities, we contented ourselves by making reference to the recent case of Shipp v. Shelton, upon this question. We have not for consideration the question of the giving of an affirmative charge, which leaves for the jury's determination the credibility of the testimony offered; but for the reversal of this cause is rested, as expressly stated, upon the action of the court as above indicated. We therefore enter into no discussion of the question argued by counsel in brief until the same arises for consideration.
The application for rehearing is therefore denied.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.