United Wholesale Grocery Co. v. Minge Floral Co.

Alabama Court of Appeals

United Wholesale Grocery Co. v. Minge Floral Co.

142 So. 586, 25 Ala. App. 153, 1932 Ala. App. LEXIS 137

CourtAlabama Court of Appeals

DecidedMay 10, 1932

Docket1 Div. 21.

StatusPublished

Cited by8 cases

This text of 142 So. 586 (United Wholesale Grocery Co. v. Minge Floral Co.) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United Wholesale Grocery Co. v. Minge Floral Co., 142 So. 586, 25 Ala. App. 153, 1932 Ala. App. LEXIS 137 (Ala. Ct. App. 1932).

Pincite

Opinion

SAMFORD, J.

This is a suit brought by Minge Floral Company, Inc., a corporation, against United Wholesale Grocery Company, a corporation, claiming damages to an automobile of appel- ' lee arising out of a collision with an automobile of appellant. The accident occurred on Ann street south of the intersection of Texas street. The automobile of appellant was being driven by F. W. Killion, who was a city salesman for appellant and who had completed his day’s work at the time of the accident and who. was on his way home and went out of the direct route to stop by his wife’s aunt’s house in order to get his wife and bring her home. He was allowed to use the automobile in question after working hours, it being furnished to him by appellant. He was allowed to use the car for whatever purpose he saw fit' and for his own personal pleasure and convenience. In other words, the custody and control of defendant’s automobile was at all times in Killion as- the agent for defendant. During business hours the automobile was to be used in the business of defendant, after which it was kept and used by Killion, with the consent of defendant.

The only proposition raised by appellant is that under all the evidence it was entitled to the general charge because of the failure of plaintiff to show that Killion was acting within the line and scope of his employment at the time of the accident.

It has many times been held in this state that, when plaintiff in a damage suit for the negligent operation of a car proves that the car causing the damage was owned by defendant, the law raises an administrative presumption that the party operating the car was the owner’s agent and acting within the scope of his authority. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Dowdell v. Beasley, 17 Ala. App. 100, 82 So. 40.

It is also the law that, if the evidence rebutting the presumption is without conflict, “and leads to no doubtful inference, to the effect that the driver was not defendant’s ¡agent, or that if he was, he was not acting within the scope of his authority, or in the course of his employment, the affirmative charge” should be given for defendant, if so requested. Authorities, supra.

The evidence in this case tends to prove that at thq time of the collision Killion was in possession and control of defendant’s automobile, not as its agent peting for defendant in the discharge of a duty owing by him to defendant, but as defendant’s, bailee and after the day’s work at defendant's place of business was over.

We are of the opinion that the evidence discloses, without adverse inference, that, at the time this accident occurred, Killion was the bailee of defendant using the car of defendant outside the scope of his employment as defendant’s agent and not in the business of defendant. In such case the defendant is not liable for Killion’s negligence. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Vol. 3, Ala. & So. Digest, 373, «=>192(6).

The defendant was entitled to the general charge as requested, and for the error in refusing this charge the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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SAMFORD, J.

This is a suit brought by Minge Floral Company, Inc., a corporation, against United Wholesale Grocery Company, a corporation, claiming damages to an automobile of appel- ' lee arising out of a collision with an automobile of appellant. The accident occurred on Ann street south of the intersection of Texas street. The automobile of appellant was being driven by F. W. Killion, who was a city salesman for appellant and who had completed his day’s work at the time of the accident and who. was on his way home and went out of the direct route to stop by his wife’s aunt’s house in order to get his wife and bring her home. He was allowed to use the automobile in question after working hours, it being furnished to him by appellant. He was allowed to use the car for whatever purpose he saw fit' and for his own personal pleasure and convenience. In other words, the custody and control of defendant’s automobile was at all times in Killion as- the agent for defendant. During business hours the automobile was to be used in the business of defendant, after which it was kept and used by Killion, with the consent of defendant.

The only proposition raised by appellant is that under all the evidence it was entitled to the general charge because of the failure of plaintiff to show that Killion was acting within the line and scope of his employment at the time of the accident.

It has many times been held in this state that, when plaintiff in a damage suit for the negligent operation of a car proves that the car causing the damage was owned by defendant, the law raises an administrative presumption that the party operating the car was the owner’s agent and acting within the scope of his authority. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Dowdell v. Beasley, 17 Ala. App. 100, 82 So. 40.

It is also the law that, if the evidence rebutting the presumption is without conflict, “and leads to no doubtful inference, to the effect that the driver was not defendant’s ¡agent, or that if he was, he was not acting within the scope of his authority, or in the course of his employment, the affirmative charge” should be given for defendant, if so requested. Authorities, supra.

The evidence in this case tends to prove that at thq time of the collision Killion was in possession and control of defendant’s automobile, not as its agent peting for defendant in the discharge of a duty owing by him to defendant, but as defendant’s, bailee and after the day’s work at defendant's place of business was over.

We are of the opinion that the evidence discloses, without adverse inference, that, at the time this accident occurred, Killion was the bailee of defendant using the car of defendant outside the scope of his employment as defendant’s agent and not in the business of defendant. In such case the defendant is not liable for Killion’s negligence. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Vol. 3, Ala. & So. Digest, 373, «=>192(6).

The defendant was entitled to the general charge as requested, and for the error in refusing this charge the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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142 So. 586, 25 Ala. App. 153, 1932 Ala. App. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-wholesale-grocery-co-v-minge-floral-co-alactapp-1932.

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