On April 30, 1940, this court reversed the judgment of the lower court and rendered a judgment upon the testimony as set out in the agreed statement of facts upon which the cause was tried in the lower court. The said judgment here rendered discharged the defendant (appellant) from further custody in this proceeding.
This court held that the testimony involved one, and only one, isolated act upon the part of the defendant, and that this act was not sufficient to constitute doing business as prescribed by the ordinance of the City of Selma. We further *Page 558 held that the defendant was not shown, by the agreed statement of facts, to be an agent of the Tennille Furniture Company, so as to be brought under the provisions of Section 9(a) of the ordinance of said City of Selma, under which the defendant was prosecuted, but that under the testimony, the defendant was a mere servant of the corporation for which he was acting, and without any authority to act as the agent of said corporation.
The appellee, in its application for rehearing, by its attorney, now says that through inadvertence, he omitted to set out in the agreed statement of facts, that the particular transaction out of which the case, in the court below arose, was but one of the many similar transactions, and that it was customary for the principal to make numerous deliveries in the City with its truck, and by its truck delivery, and that it was not desirable on the part, either of appellant or the appellee, to have the case decided on this point. And with reference to this, counsel for appellant say, that it was not the intention of the parties to restrict the issue to a question of one isolated transaction, and that it was their intent that the case should settle definitely the question of whether or not mere delivery by a truck driver who had no authority whatever to do any act, other than the mere actual delivery of articles in one municipality where the same were purchased in another municipality, was doing business in the municipality where delivery was made so as to be subject to an ordinance requiring a license for doing business in the municipality where the delivery is made.
With due respect to eminent counsel, both for the appellant and for the appellee, we feel it proper to say that it was incumbent upon this court to decide the case under the assignments of error contained in the record, and made by appellant, with reference to the testimony in the case, as the same appeared in the agreed statement of facts set out in the bill of exceptions. Said agreed facts showed one, and only one, act of delivery by the defendant. In order for the court below, and for this court to have decided the question as to whether or not under the agreed statement of facts, Fred Russell, the negro truck driver for Tennille Furniture Company was engaged in doing business in the City of Selma as an agent for the said furniture company, whose place of business was in Montgomery, Alabama, then it was necessary for the agreed statement of facts to have shown that said Fred Russell had in fact engaged in the business of acting as such agent in the City of Selma, and one act upon his part was wholly insufficient to sustain the charge as is pointed out in the original opinion.
It is clearly, succinctly and directly stated in the agreed statement of facts, that "the driver was Fred Russell, a negro employe of Tennille, employed simply to drive its truck wherever he was directed by his employer, and to make a delivery of merchandise. The negro driver had no authority whatever to make sales, to solicit orders, or to bind Frank Tennille Furniture Company in any capacity as its agent."
It, therefore, appears that it was stated and agreed to in the statement of facts that Fred Russell was the mere negro employe of Frank Tennille Furniture Company, having no authority whatever to do anything binding upon said company in any capacity as its agent.
The words "employee" and "agent" are used in the agreed statement of facts by trained and skilled lawyers, and if it was agreed to between them that this negro truck driver had no authority whatever to bind the Frank Tennille Furniture Company in any way as its agent, then it appears to this court that the conclusion is irresistible that he could not be convicted under the agreed statement of facts for acting as the agent of said Furniture Company in the City of Selma.
However desirable it may be to definitely settle the question which counsel both for the appellant and for the appellee insist be settled by this court, the rule with us is that that question will be determined when it is properly presented by a record making the decision of that question indispensable. If it is desirable to have the court pass upon the method and manner in which the Tennille Furniture Company conducts its business, in connection with the question under discussion, then let that company itself be directly proceeded against in such manner as to demand a decision with reference to its manner of doing business. Ample methods for this are provided.
Application for rehearing overruled. *Page 559