Citation Numbers: 194 Ala. 126, 69 So. 604
Judges: Anderson, Gardner, Mayfield, McClellan, Somerville, Thomas
Filed Date: 7/2/1915
Status: Precedential
Modified Date: 7/27/2022
Some of the testimony indicates that he was there for several minutes, and that he had hold of some of the timbers before he handled the wire. It was open to the jury to reasonably infer either that Lang heard Vandiver
It is obvious that, if Lang tacitly accepted the service of the intestate in this behalf, though it was foreign to his regular employment, such service was authorized in a legal sense, and the intestate was thereby brought within the protection of those rules of law which shelter servants against the negligence of their master.
For this reason Vandiver’s order to the intestate to remain and help was relevant upon the issue of the latter’s authority to do the work in question; but, standing-alone, it was not sufficient authority. It appears that Vandiver had charge of, and that the intestate was employed in, a particular branch of the service, and it does not appear that either had any duty or authority what
And again: “The injury must be received while rendering the service required by the particular employment, or in obeying the orders of a superior, to which the employee is bound to conform. Injury received while doing other more hazardous service not pertaining to the employment, by way of accommodation, or self-assumed, is not sufficient.” — G. P. R. Co. v. Propst, 85 Ala. 203, 4 South. 711.
And the general rule is well settled that: “Where the injury is sustained while the servant is acting without the scope of his regular employment, at the command or request of another servant, the master is not liable, unless the latter servant is, either expressly or impliedly, authorized to make the command or request.” — 26 Cyc. 1089, 1090, and cases cited.
It results from these principles, Avhen applied to the undisputed facts of this case, that unless the bank boss, Lang, ordered the intestate to perform the service he was rendering at the time he Avas killed, or impliedly authorized it by knoAvingly accepting the service, the plaintiff is not entitled to recover in this action.
It was the manifest purpose of charges A and B, and they are aptly framed for this purpose, to limit the jury to the Avords or conduct of Lang as the only source of
Charge 12 ought to have been given, if there was any tendency of the evidence to support any of the pleas of contributory negligence. We presume it was refused on the theory that those pleas were without such support. We pretermit consideration of this question, as the evidence on this issue may be different on the next trial.
For the error pointed out, the judgment will be reversed, and the cause remanded.
Reversed and remanded.