Opinion
2 Div. 23.
March 23, 1933.
Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.
George Pegram, of Linden, for appellant Kimbrough.
Where liability is sought to be fastened on a master upon the principle of respondeat superior the two important questions are the existence of the relation of master and servant, and whether the act complained of was performed within the scope of the employment. Tullis v. Blue, 216 Ala. 577, 114 So. 185; Penticost v. Massey, 201 Ala. 261, 77 So. 675; Alabama Power Co. v. Conine, 207 Ala. 435, 93 So. 22; Johnson v. Ala. F. I. Co., 166 Ala. 534, 52 So. 312; Addington v. Amer. Casting Co., 186 Ala. 92, 64 So. 614. Mere existence of the relationship of master and servant is not enough to impose on the master a liability for whatever tort the servant may commit, since the master's liability does not extend to wrongs committed by the servant while acting outside the scope of his employment. Alabama G. S. R. Co. v. Pouncey, 7 Ala. App. 548, 61 So. 601. To hold the master under the doctrine of respondeat superior for negligent act of the driver of the master's automobile, used with authority from the servant, it must be shown that the servant had authority to engage another driver on behalf of and as an employee or servant of the master. Toranto v. Hattaway, 219 Ala. 520, 122 So. 816. Where the gravamen of an action is the misfeasance or malfeasance of another, the complaint must allege facts out of which a duty owed by the defendant to the plaintiff arises. Higdon v. Fields, 3 Ala. App. 322, 57 So. 58; Laney v. Blackburn (Ala.App.) 144 So. 126; Alabama G. S. R. Co. v. Pouncey, supra. Where damages are alleged to be on account of negligence of an agent or servant, the complaint must allege that the act resulting in the damages was done by the agent or servant while acting within the line or scope of his authority. Illinois C. R. Co. v. Elliott, 17 Ala. App. 134, 82 So. 582; Laney v. Blackburn, supra; Alabama G. S. R. Co. v. Pouncey, supra. The general affirmative charge should never be given whenever there is any evidence or reasonable inference opposed to same. Armour Co. v. Alabama P. Co., 17 Ala. App. 280, 84 So. 628; Mutual L. I. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649; Wilson v. Windham, 213 Ala. 31, 104 So. 232, 234; People's Shoe Co. v. Skally, 196 Ala. 349, 71 So. 719.
McKinley McDaniel, of Demopolis, for appellee.
The evidence shows that Drennen Motor Car Company, so far as the management, custody, and control of its automobile was concerned, made Kimbrough its alter ego, and what Kimbrough did or failed to do was the act of the corporation itself. By and through Kimbrough, the corporation put Ray in charge of the automobile, and is liable for the injury and damage resulting from Ray's negligently running the automobile into the automobile of plaintiff. Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am. Rep. 152; Emison v. Wylam I. C. Co., 215 Ala. 504, 111 So. 216. Count 2, proceeding upon this theory, was not subject to the demurrer. Where, as here, the lower court properly gave the affirmative charge for plaintiff, there was no error in refusing any charges requested by defendants. Bennett v. Brooks, 146 Ala. 490, 41 So. 149.
The affirmative charge was given for plaintiff expressly on count 2 of the complaint, upon which the verdict was rendered pursuant to the court's instruction, and all other counts were eliminated. This count was subject to the demurrer interposed thereto upon several grounds assigned in the original and amended demurrer. It is essential that the complaint disclose the existence of a relation between the parties, out of which arises a duty owing from the defendants to the plaintiff. Tennessee Coal Iron Co. v. Smith, 171 Ala. 251, 55 So. 170; Higdon v. Fields, 3 Ala. App. 322, 57 So. 58.
Whether defendant Kimbrough was the agent or servant of defendant Drennen Motor Car Company, or a mere bailee, is not made to appear. If the former, there is no averment that he was acting within the line and scope of his employment. Addington v. American C. Co., 186 Ala. 92, 64 So. 614; McCormack Bros. Motor Co. v. Holland, 218 Ala. 200, 118 So. 387; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Alabama G. S. R. R. Co. v. Pouncey, 7 Ala. App. 548, 61 So. 601. If the latter, there is nothing to indicate incompetency on the part of the bailee. Rush v. McDonnell, 214 Ala. 47, 106 So. 175; Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87; Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380.
The complaint was insufficient, and the demurrer should have been sustained.
Upon the question of the affirmative charge, appellee insists that Kimbrough was the agent and alter ego of the Drennen Motor Car Company (citing Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am. Rep. 152, and Emison v. Wylam Ice Cream Co., 215 Ala. 504, 111 So. 216, noted with comments in First Nat. Bank v. Sanders, 225 Ala. 417, 143 So. 578), and placed the car in control of Ray, who was incompetent, because of his intoxicated condition. There is no opposing argument as to this specific insistence, and we enter into no discussion or determination thereof.
We may add, however, that even should this theory be accepted, yet a jury question would be presented under the proof; Kimbrough testifying that Ray at the time of the accident had the car without his knowledge or permission, and in direct contradiction of the averments of count 2 in this regard. This count is indefinite and uncertain as to the theory of liability, and renders also uncertain the theory upon which the trial court acted in giving the affirmative charge. However that may be, in any event, said charge was erroneously given.
Both the Drennen Motor Car Company and Kimbrough have appealed, assigned errors, and argued the assignments here considered. Defendant Ray prosecutes no appeal. Tullis v. Blue, 216 Ala. 577, 114 So. 185.
For the errors indicated, let the judgment as to these appellants be reversed.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.