Birmingham Post Co. v. Montgomery

RICE, Judge. _ This appeal, by the single appellant Birmingham Post Company, a corporation, is from a judgment against it in a suit filed by appellee against appellant and one Charles A. Preston, Jr., claiming damages for personal injuries alleged to have been inflicted upon the plaintiff by the negligent operation of an automobile by the defendant Preston while acting within the line and scope of his employment by the defendant Birmingham Post Company. But a single count of the complaint was-submitted to the jury; resulting in a verdict against the two defendants in the-amount of $350. Defendant below, Charles A. Preston, Jr.,, was duly summoned to appear on this appeal, but has failed or refused to do so. As we understand, what we may decide,, or say hereinafter, will in no way affect the judgment rendered against him, his liability, vel non, being in no way dependent upon the issues raised upon this appeal. Tullis v. Blue, 216 Ala. 577, 114 So. 185. It appears that appellant, the publisher of a newspaper, had, as one of its regular-employees, defendant Preston (above). He was paid a weekly wage — his entire time being at the disposal of appellant. Pie went hither and yon about the city of Birmingham (or, we gather, elsewhere) in the prosecution of his duties — owning and using his own car — but toward the upkeep of, or expense of operating which, appellant made substantial, monthly contributions. Preston’s duties, it appears, were to go just anywhere he was directed, by whatever route he chose, to make photographs — he 'being the “staff photographer.” It seems thát in the morning of each day he would be given, by his employer, a list of photographs it desired made during the remaining part of that. day. Upon the particular day here in question. Preston received his “list”; and, up to the time of the happening of the accident giving'rise to this suit, had made a number of photographs for his employer. It appears that by 4:30 in the afternoon of said day he had made all the photographs on his list, save one -he was directed to make — in the southeastern part of the city — at about 8 p. m. Having some idle time on his hands, he went, at 4:30 p. m. of said day, to St. Vincent’s Hospital and took a young lady out for some pastime and recreation. This being accomplished, he was, as we think the-evidence affords a fair inference, at about 6:30 p. m. on his way back to said hospital, to take the young lady — where she was to go on duty- — -as a nurse at 7 p. m. — and also on his way to the southeastern portion of the city — where he lived — and where he expected to (after picking up his mother at a friend’s house) get his supper and go a short distance from his home (in the same- *497 section) and make this “8:00 o’clock” photograph. At about 6:30 p. m., as Preston was driving his car from Plighland avenue into 23rd street — and which route was as good as another to go to the southeastern section of the city where he -was to make the photograph — after getting his supper — at about 8 p. m. — his car ran upon or against appellee. Preston testified that he was, at the time, on' his way back to the hospital to take the young lady who was with him in the car. Well, doubtless he was. But, as we read the testimony, the jury may well have found that he was, likewise, and at the same time, on his way to the southeastern section of the city for the purpose of taking (or making) the aforementioned photograph at about 8 p. m. — he stating that he expected to eat his supper before he made it. The chief issue — certainly the deciding issue — upon this appeal is as to whether or not Preston, at the time of the injury to appellee, was engaged “within the line and scope of his employment by appellant.” Appellant practically concedes — -as indeed it might as well — that the evidence made a jury question as to whether or not Preston’s negligence in the operation of his automobile was the proximate cause of the injuries suffered by appellee. And, no question is raised here but that, so far as appellant’s liability vel non is concerned, it was immaterial that the car 'in question was owned by Preston, rather than appellant. Berry on Automobiles (6th Ed.) p. 1146, par. 1385; Regal Laundry Co. v. A. S. Abell Co. (1933) 163 Md. 525, 163 A. 845, 847; Caver v. Eggerton, 157 Miss. 88, 127 So. 727. There was no motion for a new trial, so, the only question for us to decide is as to whether or not there was evidence reasonably affording an inference adverse to the contention urged here on behalf of appellant. If there was a “scintilla” of such evidence, there was no error in refusing to give the jury at appellant’s request the general affirmative charge to find in its favor. Pelzer v. Mutual Warehouse Co., 217 Ala. 630, 117 So. 165. Appellant’s able counsel strongly contends, here, that this question of whether or not appellant should have had said general affirmative charge given in its favor is ruled by the cases of McCormack Brothers Motor Car Company v. Holland, 218 Ala. 200, 118 So. 387, and Dowdell v. Beasley, 205 Ala. 130, 87 So. 18. But we do not agree. It is our opinion that said question is governed, here, by that line of cases of which, perhaps, Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387, is as good an example as another. See Blackmon v. Starling, 222 Ala. 87, 130 So. 782; Mobile Pure Milk Co. v. Coleman, 26 Ala.App. 402, 161 So. 826, certiorari denied 230 Ala. 432, 161 So. 829; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16. As Mr. Justice Thomas wrote, in the opinion for the Supreme Court, in the case of Blackmon v. Starling, supra: “Our decisions are * * * agreed that, where there has been a deviation or departure from the master’s business, and the scope of the agent’s employment, where such personal purpose and benefit has been accomplished, and the agent is in the process of returning to the sphere of his employer’s business, the question as to whether he is acting within the line and scope of his employment and his master’s business is for the jury under appropriate instructions from the court.” That, as we read the testimony in this case, is the situation here. There is no doubt that, for a time, Preston had deviated from the line and scope of his employment. But th'e jury might easily have found that he had finished his “private business” at the time of the accident in question; and was then “in the process of returning to the sphere of his employer’s business,” merely meaning to incidentally drop his lady friend at the hospital as he passed that way. The learned trial judge, we are persuaded, gave the jury — on the point in question —the “appropriate instructions” referred to by Mr. Justice Thomas, above, in the following quoted excerpt from his excellent oral charge, to wit: “The question, then, in this case for you to decide from .all the evidence in the case is whether his carrying his girl or the young lady to St. Vincent’s Hospital was a matter that had no connection with or was entirely removed from and disassociated with the idea of working for the Birmingham Post, or was that merely incidental ? Did he at the time have in mind a duty that he was performing and was he, in fact, performing a duty at that time, and did he have in mind the duty that he was performing, for the Birmingham Post, and *498 was his carrying the young lady to the St. Vincent’s Hospital merely incidental ? And if you find that it was merely incidental to his work for the Birmingham Post, and at that time he was, in fact, in the service of the Birmingham Post and performing a mission for the Birmingham Post and in the act of going to a place to take pictures for his master; that is, acting within the general line and scope of his employment by the defendant, the Birmingham Post, then the defendant would be responsible for his conduct. But if his conduct in carrying the young lady to ride or to the St. Vincent’s Hospital at the time was not merely incidental, if it served to sever and suspend for the time being his relationship as agent for the defendant Birmingham Post, then the defendant Birmingham Post would not be responsible for his conduct.” We approve of what he there said. It results that we are of the opinion that there was no error in refusing to- give to the jury- the duly requested general affirmative charge to find in favor of appellant. The few other questions presented are given but scant attention by appellant’s counsel in his brief filed here. We will not discuss them. It is sufficient to say that in none of them do we see involved a ruling for which the judgment should be reversed. It is accordingly affirmed. Affirmed.