Hancock v. Liggett & Myers Tobacco Co.

• Decision Date: 06 October 1949
• Docket Number: 6 Div. 761.
• Citation: 42 So.2d 632,253 Ala. 63
• Court: Alabama Supreme Court
• Parties: HANCOCK v. LIGGETT & MYERS TOBACCO CO.

42 So.2d 632

253 Ala. 63

HANCOCK v. LIGGETT & MYERS TOBACCO CO.

6 Div. 761.

Supreme Court of Alabama

Oct. 6, 1949

Rehearing Denied Nov. 17, 1949.

J. Terry Huffstutler, of Birmingham, for appellant.

Lange Simpson Robinson & Somerville, of Birmingham, for appellee.

BROWN Justice.

This is an action of trespass on the case by appellant against appellee seeking a judgment for damages for personal injury and property loss occasioned by the collision of defendant's motor vehicle with the plaintiff's automobile on First Avenue North at about the intersection of 34th Street in the City of Birmingham on the evening of February 18, 1947.

The plaintiff's cause of action is stated in two counts of his complaint as last amended, the first ascribing the injuries to plaintiff's person and damage to the automobile to the negligence of 'defendant's servant or agent,' said count averring, 'whose name to the plaintiff is unknown, but who was then and there acting within the line and scope of his employment, negligently drove or operated the automobile of the defendant over, upon or against the automobile of the plaintiff, and as a proximate consequence thereof, the plaintiff received severe personal injuries' (which are catalogued) and the automobile of plaintiff 'a new Plymouth, was so greatly damaged' etc.

The second count is in like verbiage and charges that said agent or servant of the defendant 'willfully or wantonly drove or operated the automobile of the defendant over, upon or against the automobile of the plaintiff.'

The defendant pleaded the general issue in short by consent with leave to give in evidence any matter which if specially pleaded would constitute a good defense.

At the conclusion of the evidence the trial court gave, at the request of the defendant, the affirmative charge with hypothesis in his favor and this ruling and action of the court is the basis for the only assignment of error on the record.

The evidence is without dispute that plaintiff while driving his automobile, a new Plymouth, on First Avenue North in the City of Birmingham on the evening of February 18, 1947, was struck by a truck belonging to the defendant, carrying an excise license plate issued to the defendant by the Jefferson County authorities. Said truck collided with plaintiff's car and damaged the said car and injured the plaintiff. The plaintiff was driving his car on the right side of the avenue going east and the defendant's car was proceeding west at the rate of 50 to 60 miles an hour on the wrong side of said avenue. Immediately after the collision the evidence shows, the driver of the truck of the defendant got out of the truck, went around and looked at the back end and the fender of the car on the side where it collided with plaintiff's car and then immediately ran away in the dark, leaving the scene and the truck of the defendant with the keys in the ignition slot. The evidence further shows that on one side of the truck of the defendant was painted the words 'Liggett & Myers Tobacco Company' and on the other side the name of a product of tobacco which was handled and sold by Liggett & Myers Tobacco Company and that in the truck was carried several cartons of Chesterfield Cigarettes and other matters designated for advertising the business of the defendant.

This evidence made out a prima facie case for the plaintiff and imposed on defendant the burden of going forward with the evidence and showing that the person driving the defendant's truck was not the agent or servant of the defendant or if he was such agent that he was not acting within the line and scope of his authority. Plaintiff's evidence shows without dispute that the collision occurred on Friday evening between 6 and 7 o'clock on the 18th day of February, 1947. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Tullis v. Blue, 216 Ala. 577, 114 So. 185.

The defendant to rebut and overcome the presumption arising from the ownership of the car offered two witnesses, Murray Dixon Jr. and L. G. Nunnally Jr. and several witnesses to corroborate their testimony as to their whereabouts between the hours of 6 and 7 o'clock P.M. on the evening of February 18, 1947. The testimony of Dixon and Nunnally goes to show that during the year 1947 and particularly on February 17th and 18th, they were each employees of Liggett and Myers Tobacco Company and that they were each furnished an automobile service sedan or operating truck of Liggett and Myers Tobacco Company and were furnished with advertising material and goods to advertise and sell for said defendant. That they worked separately and had separate vehicles and separate supplies and worked during the day-time in separate territory. That they registered as guests of the Bankhead Hotel on the 17th of February, 1947, after their day's work on Monday and that they returned to the hotel on Tuesday. That they did not occupy room on the same floor but on separate floors. That after they returned to the hotel on Tuesday, they communicated over the telephone and agreed to have supper or dinner together. That Dixon had a customer at Howard's Grill out in Norwood and they planned to go to Howard's Grill for their evening meal. That prior to this communication, they had parked their respective cars, Dixon in front...