Southern Garage Co. v. Brown , 187 Ala. 484 ( 1914 )

SAYRE, J.

Plaintiff (appellee) sued defendant (appellant) for that defendant, having possession of plaintiff’s automobile under a contract of bailment for the benefit of both parties, defendant’s servant, acting within the line and scope of his employment as such, negligently caused said automobile to be greatly damaged, the Reporter will briefly state the facts.

, Defendant insists that it was entitled to the general charge on two grounds: (1) Defendant having sent a competent chauffeur for the machine with instructions to bring it directly to the garage, and the chauffeur having taken the machine out of the way on some errand of his own to a distant part of the city where it was damaged in a collision, the burden was on plaintiff to show negligence on the chauffeur’s part in the immediate circumstances of the collision, which the plaintiff did not undertake to do; (2) plaintiff failed to show the insurance company’s interest in the suit.

1. It was for defendant to show that plaintiff’s machine had not been damaged by the negligence of its servant to whom it was intrusted. Without dispute, the servant had received possession of the property by virtue of his employment and his employer’s contract of bailment, and it had been damaged while in his possession. The burden is upon the bailee to show that property damaged while in his possession was not so damaged by want of ordinary care on his part.—Higman v. Camody, 112 Ala. 267, 20 South. 480, 57 Am. St. Rep. 33; Weller v. Camp, 169 Ala. 275, 52 South. 929, 28 L. R. A. (N. S.) 1106. The master is answerable for the negligence of his servavnt acting within the line and scope of his employment. It follows, hence, that the trial court did not mislocate the burden of proof by its refusal to give the general charge requested by defendant.

2. The only effect of bringing the suit to the use of the insurance company was to declare a use for the company. With that defendant had no concern, and it was not necessary that plaintiff should adduce proof on the subject. The suit by plaintiff to the use of the insurance company operated merely as an estoppel on plaintiff to deny, as against the company, its right to the proceeds.

3. There was no' error in refusing to defendant the charges made the subjects of assignments of error numbered 2 and 3. The fact that the chauffeur took the automobile to Avondale out of the proper way for some purpose of his own did not relieve the defendant of responsibility for its safe-keeping. At the time of the mishap to the machine defendant’s servant had not completed the service it was his duty to perform. He was still engaged upon that service, though performing it contrary to bis master’s command and making bis performance serve a purpose of bis own. Ás we bave said, be bad possession by virtue of bis employment and bis employers’ contract of bailment. If be bad acquired possession without tbe master’s knowledge or consent, express or implied, or if, having acquired possession by tbe master’s express command, as evidently be did, he bad in tbe operation of tbe machine negligently caused injury to a stranger to tbe contract, a different question would be presented about which there might - possibly be more or less difficulty. But on tbe facts here shown, and on tbe principles already stated, we think there can be no doubt that tbe possession of defendant’s servant was tbe possession of defendant, and that defendant was answerable for its servant’s negligence in tbe matter of tbe safe-keeping of tbe automobile, notwithstanding tbe latter’s divagation from the. strict line of bis duty.

4. Tbe thing was informally done, but tbe complaint was in effect amended during tbe progress of tbe trial so as to eliminate tbe allegation in reference to tbe insurance company, and so tbe point was taken out of defendant’s demurrer, if any it bad.

No error appearing, tbe judgment is affirmed.

Affirmed.

Anderson, C. J., and McClellan and de Graffenried, JJ., concur.