Blair v. Greene

I concur with Mr. Justice LIVINGSTON in the interpretation of the guest statute, but am unable to agree with his interpretation of the evidence; hence this opinion.

Greene, the deceased, was an employe of defendant Blair who was engaged in the construction of a government project. Defendant Charlton was also an employe of Blair, in the capacity of civil engineer. Greene and others were under Charlton's direct superintendency. Charlton was entrusted by Blair with an automobile or station wagon, and on the occasion of the fatal injury of Greene, he was being carried to his home from work in said automobile, driven by Charlton.

Plaintiff's theory was and is that her intestate was a passenger in the automobile, as distinguished from a "guest", within the purview of Section 95, Title 36 of the Code of 1940, and that at the time and on the occasion Charlton was acting within the line and scope of his employment by Blair.

Defendant's theory was and is that intestate's status was that of "guest", rather than passenger for hire; that Charlton was not at the time and on the occasion acting within the line and scope of his employment; and, further, that the claim for the injury and death of intestate was compensable, if at all, only under the Alabama Workmen's Compensation. Law.

The trial court ex mero motu, without being "required" to do so by either of the parties, charged the jury on the effect of the evidence, (1) that intestate, at the time of the accident, occupied the relation of a passenger in the automobile; (2) that if one defendant was liable, both were liable, — that is, that Charlton was acting within the line and scope of his employment; and (3) that intestate was not subject to the Workmen's Compensation Law.

It is not to be questioned that the trial court in so charging the jury contravened the very terms of the statute, Code 1940, Tit. 7, § 270. I am unable to concur in the conclusion expressed in the opinion of LIVINGSTON, J., that this was error without injury. To do so, the entire evidence offered on the trial must be interpreted as being susceptible of a single inference. I do not so interpret it.

The evidence on the controverted issues consisted of the testimony of four witnesses, one for the plaintiff and three for the defendants. Three of these were fellow employes of intestate and passengers in the automobile at the time of the accident, and the other was the co-defendant Charlton. While there is no conflict in this testimony that the automobile was the property of Blair and furnished by Blair to Charlton; that Blair furnished gas and oil for its operation; that Charlton occupied a position of at least quasi-superintendency and had and exercised a general supervision over intestate and others in his crew; that Charlton used the automobile in transporting himself, his men and tools or instruments from place to place on the job, and also used it in traveling between his home — in an adjoining county — and his place of work, and made a practice of conveying intestate and others in his crew from the job to points at or near their respective homes — following a devious route or routes — on his travels going to and coming from his place of work and his home; and that it was on one of such trips that intestate was injured: — There was, on the other hand, undisputed evidence that his use of the automobile for purposes other than those involving his work on the job was without any direct authority on the part of his employer, Blair. The evidence as to this is simply that Blair knew that he used the automobile in traveling between his job and his home and made no objection thereto, and that perhaps Blair knew of his practiced use of the automobile in transporting members of his crew from their homes to the job and from the job to their homes, and that no objection was made as to this. There is also evidence that there was no agreement or understanding whatever between intestate and other crew members and Blair or Charlton or anyone else with respect to their transportation to and from the job; that such transportation was no part of their compensation, and that they paid no one anything for the service. While there are tendencies of evidence to the effect that it was in the interest of the employer, Blair, that his employes engaged in this construction job be afforded adequate means of transportation to and from their work; there are also tendencies of evidence to the effect that the transportation was largely, if not solely, in the interest and for the accommodation of such employes.

However persuasive may be either the one or the other of the inferences logically to be drawn from the whole evidence, neither can be said to be exclusive. Wherever this is so, the issue is one which must be submitted primarily to the jury. Hill v. Decatur Ice Coal Co., 219 Ala. 380, 122 So. 338. While I am persuaded, on more thorough examination of the testimony in the case, that the issue of whether or not the Workmen's Compensation Law was applicable to plaintiff's claim could only be resolved in the negative, and that, therefore, the action of the trial court in withdrawing this issue from the jury could be sustained on the theory of error without injury, Stockham Pipe Fittings Co. v. Williams, 245 Ala. 570,

18 So. 2d 93, I am of the opinion that the court's oral affirmative instructions on the other two issues, viz: the status of intestate as a passenger or a guest, and whether or not Charlton was acting within the line and scope of his employment in the matter of transporting intestate at the time and place, in such wise as to render his employer, Blair, liable, were issues which should have been submitted to the jury, and that the court's charge was invasive of the province of the jury. For this error the judgment is due to be reversed.

THOMAS, FOSTER, and SIMPSON, JJ., concur.