Augusta Friedman's Shop, Inc. v. Yeates , 216 Ala. 434 ( 1927 )

Of course, the injury complained of must have been inflicted by an agent or servant of the defendant while acting within the line and scope of the employment or as so held out by it. The evidence tends to establish the fact that the plaintiff's scalp was injured through the negligence of an employee of the Augusta Friedman Beauty Salon, and the question arises, Was the appellant, the Augusta Friedman Shop, Inc., the owner in whole or in part in the Augusta Friedman Beauty Salon, or did the former hold itself out as the owner or proprietor of the latter? It is a well-established rule of law that, when one holds himself out as the owner or partner in a business, and third persons are thereby misled or injured, the person so holding himself out is liable to the same extent as if he was the owner or partner, although there may have been no proprietorship or partnership inter sese. Fertilizer Co. v. Reynolds, 85 Ala. 23; 4 So. 639; Levy v. Alexander, 95 Ala. 101,10 So. 394; Cain v. Standard Co., 108 Ala. 348,18 So. 882. And this rule also applies as to principal and agent. 2 C. J. §§ 70, 71, p. 461; Mechem on Agency, §§ 83, 84; Gibson v. Snow, 94 Ala. 346, 10 So. 304; Sou. R. R. v. Beaty, 212 Ala. 608,103 So. 658. This doctrine of liability applies to torts as well as contracts whenever the tort consists of the violation of a duty which springs from the contract. Hannon v. Siegel-Cooper Co., 167 N.Y. 244, 60 N.E. 597, 52 L.R.A. 429. Indeed, this case is quite similar to the case in hand; the only difference being a dental parlor instead of beauty salon.

The record contains evidence which afforded a reasonable inference for the jury that the appellant held itself out to the plaintiff and public generally as the owner or proprietor of the Augusta Friedman Beauty Salon. The names were in part identical, the salon was in the defendant's building, was reached by its elevator, and the defendant advertised it in connection with the general business and failed to designate Remond, or any one else, as the owner or proprietor. Not only was this done, but the plaintiff, when settling her bill, made the check payable to "Augusta Friedman's Shop" at the instance of an employee, and the check was indorsed and presumably collected by "Augusta Friedman Shop, Inc." And the jury could well infer, from the evidence, that the plaintiff believed the beauty salon was operated by the appellant and relied on this fact when having her hair dressed. The trial court did not err in refusing the general charge requested by the appellant.

The cases cited and relied upon in brief of appellant's counsel are not in conflict with and have no bearing upon the question here decided. Whether the relationship of master and servant did or did not exist between appellant and Remond or between it and the other inmates of the salon, if it held itself out as the owner or proprietor of the salon, a fact for the jury, it necessarily held out the workers in the salon as its authorized agents or servants in conducting the business so held out as its own.

The judgment of the circuit court is affirmed.

SOMERVILLE, GARDNER, THOMAS, BOULDIN, and BROWN, JJ., concur.

SAYRE, J., dissents.