A fair statement of the facts in this case is as follows: "The plaintiff was proceeding along the north side of Highland avenue in Birmingham, Ala., in an easterly direction across 23rd street. An automobile driven by the defendant, Preston, was proceeding along the south side of Highland avenue, in an easterly direction, and turned to the left across Highland avenue intending to go in a northerly direction on 23rd street. The accident occurred in 23rd street and on the 'cross walk', or, in other words, within the side lines as extended."
The point really litigated on the trial, and raised by this appeal, is whether or not the defendant, Preston, at the time of the accident was acting within the line and scope of his employment or whether or not he was engaged at the time in a purely personal enterprise?
The evidence upon that issue is to be found in the answers of the Birmingham Post Company to interrogatories propounded to it by the plaintiff under section 7764 of the Code, and in the testimony of Preston, who was examined as a witness by the plaintiff. This evidence was without conflict to the following effect: The Birmingham Post Company published a newspaper in Birmingham, Ala. Preston was in its employ, as a photographer, for the purpose of taking such photographs as it desired, or might designate, for publication in its paper, with no special hours of employment named. The services to be rendered at any time called for by the employer, and from time to time as the editor of the paper might designate. In performing that duty, Preston used an automobile to reach the point where the pictures were to be taken. The automobile used by him and which was involved in this accident was owned by Preston, and not by the Birmingham Post Company. He was allowed $20 per month for the payment of gasoline consumed in the use of his automobile in his work for the Birmingham Post Company, for which he was to make no itemized account.
The accident complained of occurred about 6:30 p.m. on November 23, 1934. On that day somewhere between 8 o'clock and 12 noon, the editor of the paper gave Preston a list of the pictures to be taken that day. At 4:30 in that afternoon the only assignment remaining was to take the picture of a Miss Gambrill at her home at 8 o'clock p.m. Miss Gambrill resided in a residential section in Birmingham known as Forest Park. Preston, himself, resided in that same residential section. Preston did no work for the Birmingham Post between the hours of 4:30 p. m. and 8 p. m. At 4:30 p. m. Preston went to St. Vincent's Hospital in Birmingham and "picked up" Miss Hester, who was a nurse and a friend of his and whom he later married. Miss Hester was in no way connected with the Birmingham Post Company, nor with any duties incident to the employment of Preston. His visit and association with Miss Hester was purely social. After Miss Hester got into the automobile, the two of them drove around casually, and then went on out to Miss Hester's home, where they stayed several minutes and then they went for a ride. At the time the accident occurred Preston was returning Miss Hester to the hospital, where she was required to be by 7 o'clock. The *Page 499 place where the accident occurred was within a few blocks of the hospital. After the accident, Preston, after rendering some services to the plaintiff, continued on his way and carried Miss Hester to the hospital, and after leaving the hospital went to a nearby home for his mother, who was visiting a friend, and from that point he and his mother went to their home, got out of the automobile, went into the house, and had their evening meal. After the evening meal, Preston got into the automobile at his own home and drove over to the home of Miss Gambrill where the picture was made. After which he went to the municipal auditorium, made other pictures for the Birmingham Post Company, and turned them into the proper official.
In the original opinion in this case, Judge RICE, speaking for the court, was of the opinion that the questions here involved were controlled by that line of cases of which Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387, is a fair illustration. On a further consideration of the question, we are of the opinion that the Edwards Case, supra, and others following it may be easily differentiated from the case at bar. In the Edwards Case, supra, there was never an entire deviation from the employment of Robinson to Earnest, and we are persuaded that in the other cases may be found points of difference.
It has been consistently held in Mobile Pure Milk Co. v. Coleman, 26 Ala. App. 402, 161 So. 826, and other cases of similar import, that where there has been a deviation or departure from the master's business, and the scope of the agent's employment, where such personal purpose and benefit has been accomplished, and the agent is in the process of returning to the sphere of his employer's business, the question as to whether he is acting within the line and scope of his employment and his master's business is for the jury under appropriate instructions from the court. Blackmon v. Starling,222 Ala. 87, 130 So. 782. On the other hand, it is just as well settled that an employer is not liable to one who is injured by the negligence of his employee whide operating an automobile outside of the line and scope of his employment, as where an employee steps aside from his employment and is on an errand personal to himself, or for his own purpose. Dowdell v. Beasley, 205 Ala. 130, 87 So. 18.
In the instant case, it is clear that Preston was engaged on his own mission, entirely disconnected from his employment as a photographer for the defendant, Post Publishing Company, when he engaged Miss Hester for a social ride, at a time and circumstances entirely dissassociated with his employment.
It is as equally clear, and undisputed, that at the time of the accident, Preston had not completed his social engagement with Miss Hester, and, therefore, he was not, and could not have been, in the process of returning to the sphere of his employer's business. For that reason, and upon further consideration, we are of the opinion that the defendant, the Post Publishing Company, was entitled to the general affirmative charge as requested, and that this court was in error in its holding to the contrary.
It follows that the application for rehearing is granted; judgment of affirmance is set aside; and the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.