Freeman v. Southern Life Health Ins. Co. , 210 Ala. 459 ( 1923 )

This was a suit brought by the appellant against these appellees for injuries inflicted by a car operated by Darrell, one of said appellees, and there was judgment against Darrell and verdict in favor of the Southern Life Company, pursuant to the general affirmative charge given in its favor. The plaintiff appealed, and insisted upon error as to the giving of said charge.

In order for the plaintiff to recover against appellee company, it was incumbent upon him to show that "Darrell," at the time of the injury, was operating the car as its agent or servant and that he was acting within the line or scope of his duties as such agent or servant. It may be conceded that the proof of the ownership of the car made out a prima facie case that it was being operated by an agent or servant of the defendant company, and that he was acting within the scope of his authority. Ford v. Hankins, 209 Ala. 202, 96 So. 349, and cases there cited. This, however, was but a rebuttable presumption, and if the evidence in rebuttal is undisputed and shows that the party operating the car was not the agent or servant of the defendant or was not acting within the scope of employment, the defendant would be entitled to the general charge. Ford v. Hankins, supra; Massey v. Pentecost, 206 Ala. 411,90 So. 866.

We think that the undisputed evidence shows that Darrell acquired and held the possession of the car in question as a mechanic, for the purpose of repairing same in his own way by the job, and free from the direction or control of the owner as to detail or manner, and the fact that he may have based the amount of his charge for the job upon the hours he worked on said car did not change him from an independent contractor to an employee. Republic Iron Steel Co. v. McLaughlin, 200 Ala. 204,75 So. 962, and cases there cited.

The trial court did not err in giving the general charge in favor of the Southern Life Health Insurance Company, and the judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.