Certiorari was granted on petition of Deaton Truck Line, Inc., a corporation, to review a judgment of the Circuit Court of Jefferson County, Bessemer Division, awarding compensation to the widow and minor children of Emery O. Acker, deceased.
The proceedings were instituted in the trial court under the Alabama Workmen’s Compensation Law, Chapter 5, Title 26, Code 1940, by Mrs. Evelyn Acker, the widow, who sued on her own behalf and that of her minor children.
On June 24, 1949, Emery O. Acker entered into a written agreement with the Deaton Truck Line, Inc., a corporation, hereinafter referred to as Deaton, wherein Acker, as owner, rented or leased to Deaton a truck-tractor and a trailer which, when operated together, were capable of hauling freight. Deaton was engaged in the business of hauling freight as a common carrier, both intrastate and interstate. The said written agreement is set out in the report of the case.
The written agreement here involved is more or less similar to the one considered by this court in Stevens v. Deaton Truck Line, Inc., 256 Ala. 229, 54 So.2d 464, 468. In that case we held, in effect, that under the terms and provisions of the agreement there considered, the relationship of Deaton Truck Line, Inc., and Roberts was that of master and servant, and that Deaton would be chargeable with the negligence of Roberts (owner of the vehicle) where Roberts at the time of the negligent act was acting within the line and scope of his employment. We further said in that case:
“We are inclined to agree with the trial court that under the evidence in this case Roberts, when carrying out his duties under the terms of the contract, was a servant or employee of Deaton rather than an independent contractor.
“But such status or relationship in and of itself was not sufficient to make Deaton liable for the negligence of Roberts under all circumstances. To *472recover against Deaton upon the theory of respondeat superior it was incumbent upon plaintiff to show that the act done was within the scope of Roberts’ employment and was committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer. Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So. 2d 490.”
In the case just referred to above, we were considering the question of whether Deaton was liable for the death of a third person caused by the alleged negligent operation of the motor vehicle by Roberts, and the language quoted above must be construed in connection with the question there before us.
The written agreement involved in the instant case, like that in the Deaton case, supra, provided that the lessor, the owner of the motor vehicle, was to keep it in good mechanical condition and repair at his own expense for the duration of the lease, pay all costs of its operation, including gasoline, oil, tires, parts, repairs, driver’s salary, etc.
Acker drove the truck when it was being used in hauling freight for Deaton Truck Line, Inc. His last trip ended on the afternoon of Thursday, May 4, 1950, at which time he arrived at the lessee’s terminal in Birmingham from New Orleans, Louisiana. He met his death three days later, on Sunday, May 7, 1950. Just prior to his death, Acker and a friend removed the gasoline tank from the truck and carried it into the kitchen of Acker’s home located in or near Bessemer, some ten or twelve miles distant from Deaton’s terminal in Birmingham. Without the knowledge of, and not. under the supervision, direction or control of Deaton, Acker undertook to repair a leak in the gas tank which had been removed from the truck. While so engaged, an explosion occurred which resulted in Acker’s death.
It may be conceded that under our holding in Stevens v. Deaton Truck Line, Inc., supra, Acker was an employee of Deaton rather than an independent contractor. But that relationship does not determine the question of liability here involved.
In order for an accident to be compensable under the Workmen’s Compensation Law of this state, it must arise out of and in the course of employment. See Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666, for a discussion of those terms.
Our holding in the recent case of C. E. Adams & Co. v. Harrell, 257 Ala. 25, 57 So.2d 83, is not in point. In that case the question was whether Harrell was an employee or an independent contractor. If he was an employee, it was conceded that compensation was due, as there was no question but that his death resulted from an accident which arose out of and in the course of such employment.
Our interpretation of the written agreement here involved is that while the motor vehicle was out of service and being repaired, it was under the sole jurisdiction and control of Acker, whose duty it was to have it repaired at his own expense. He was privileged to select the place where, and the person by whom the repairs should be made.
At the time Acker was killed, the motor vehicle was out of service and out of commission so far as the work of transportation was concerned and incapable of earning compensation for him under his contract of employment. Acker selected the place where the repairs were to be made, at his home, a place where Deaton had no connection and where the business of Deaton did not require the presence of Acker. He elected to make the repairs himself.
We are constrained to the conclusion, therefore, that Acker’s death did not occur in the course of his employment by Deaton. Prayther v. Deepwater Coal & Iron Co., 216 Ala. 579, 114 So. 194; McDonald v. Denison, 51 N.M. 386, 185 P.2d 508; Stuhr v. State Industrial Accident Commission, 186 Or. 629, 208 P.2d 450; Jarman v. Trucking, Inc., 286 Mich. 492, 282 N.W. 218; Pappas v. Yant Const. Co., 121 Neb. 766, 238 N.W. 531; Pettet v. Mon*473roe County Emergency Work Bureau, 248 App.Div. 797, 289 N.Y.S. 29, McKay v. Crowell & Spencer Lumber Co., La.App., 189 So. 508; Rector v. Ragner-Benson, Inc., 313 Mich. 277, 21 N.W.2d 129.
The conclusion which we reached above makes it unnecessary to treat the other questions argued by counsel for appellant.
The judgment is reversed and the cause remanded.
Reversed and remanded.
All the Justices concur except LIVINGSTON, C. J., who dissents.