Anderson v. Howard Hall Co.

• Decision Date: 06 April 1961
• Docket Number: 6 Div. 578
• Citation: 272 Ala. 466,131 So.2d 417
• Parties: Leona ANDERSON v. HOWARD HALL COMPANY, Inc., et al.
• Court: Alabama Supreme Court

Page 417

131 So.2d 417

272 Ala. 466

Leona ANDERSON v. HOWARD HALL COMPANY, Inc., et al.

6 Div. 578.

Supreme Court of Alabama.

April 6, 1961.

Rehearing Denied June 29, 1961.

John J. Smith and Geo. S. Brown, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, for appellee Howard Hall Co.

STAKELY, Justice.

This is an action by Mrs. Leona Anderson (appellant) against Howard Hall Company, Inc., a corporation (appellee), and James Earl Haynes for personal injuries suffered in an automobile collision on April 5, 1958. The defendant James Earl Haynes on that occasion was driving a tractor customarily used in hauling a trailer but to which no trailer was attached at the time. The tractor collided with the automobile driven by Mrs. Leona Anderson.

At the conclusion of plaintiff's testimony the court announced that it would grant to the defendant Howard Hall Company, Inc., the general affirmative charge without hypothesis, whereupon the witnesses and counsel for Howard Hall Company, Inc., left the courtroom and the case proceeded against the defendant James Earl Haynes. At the close of all the evidence the court gave the following charge requested in writing by defendant Howard Hall Company, Inc.:

'1. The Court charges you that your verdict must be in favor of the defendant Howard Hall Company, Inc.'

The court also read the same charge to the jury during the course of his oral charge to which the plaintiff then and there excepted.

The jury obeyed the court's directed verdict as set forth in Charge 1 and returned a verdict in favor of Howard Hall Company, Inc. The jury also returned a verdict in favor of the plaintiff and against the defendant James Earl Haynes for $5,500. The judgment on the latter verdict has not been appealed, but this appeal followed from the judgment in favor of Howard Hall Company, Inc.

The evidence showed that the tractor being driven by the defendant James Earl Haynes bore the name of Howard Hall Company, Inc., and that the defendant Haynes was an employee of the defendant Howard Hall Company, Inc., by virtue of a written contract between them under the terms of which Haynes had leased the tractor to Howard Hall Company, Inc.

The sole question on this appeal is whether the plaintiff was entitled to go to the jury against the defendant Howard Hall Company, Inc., on the administrative presumption that the driver of a vehicle bearing the name of Howard Hall Company, Inc., is an employee of Howard Hall Company, Inc., acting within the line and scope of his employment.

I. Before coming to the law in the case, we think it well to state the salient facts shown by the evidence. A written lease contract described as Exhibit 1 was introduced in evidence by the plaintiff. It shows that Mr. Haynes and his co-owner (both being described in the contract as owner) leased a tractor without a trailer to Howard Hall under an arrangement cancellable at the will of either party. The tractor was to be used in hauling freight only for Howard Hall. The rental to be paid the owner was a percentage of the revenue earned by such transportation, based on a mileage rate. The owner obligated himself to pay all costs of operating and maintaining the tractor and agreed to keep the tractor in good and safe operating condition, bearing the cost of repairs for such purpose.

The accident for which the plaintiff sued occurred about 9:00 p. m. on Saturday, April 5, 1958, at a time (without any trailer and without any load) when Mr. Haynes was operating the tractor and was travelling toward Chilton County (the tractor bore a Chilton County tag) and in the opposite direction from the Howard Hall Terminal.

The Howard Hall Terminal usually closed around 1:00 p. m. on Saturday.

The tractor bore a painted sign showing that it 'was leased to Howard Hall.'

The records of Howard Hall, which was a common carrier, showed that the Haynes tractor pulled no load either in or out of the Howard Hall Terminal on Staturday, April 5, 1958.

As we have stated, Howard Hall rested its case at the close of the plaintiff's testimony. It does not seem to us, therefore, that the testimony of Mr. Haynes given as a part of his own case, after objection was made, has any bearing on this appeal. It should be noted, however, that while Mr. Haynes had been to the Howard Hall Terminal, no load was given to him to carry and he was on his way home at the time of the accident, which occurred at 9:00 p. m. Saturday, April 5, 1958. Under the arrangement between him and Howard Hall, he would take the tractor home when it was not being used on business. He lived in Chilton County.

Appellant takes the position that in an action for injuries resulting from the operation of a motor vehicle, proof that the motor vehicle bore defendant's name raises an administrative presumption that the vehicle was, at the time of the injury, operated by defendant's agent, servant or employee, acting within the line and scope of his employment. Cited to support this statement are Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345; Hancock v. Liggett & Myers Tobacco Co., 253 Ala. 63, 42 So.2d 632; Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 743.

The appellant takes the further position that where the injuries result from the operation of a vehicle bearing the defendant's name, the fact that the vehicle was actually owned by someone else does not destroy the administrative presumption that the vehicle was operated by defendant's agent, servant or employee, acting within the line and scope of his employment. Cited to support this statement are Sears. Roebuck & Co. v. Hamm, 38 Ala.App. 258, 81 So.2d 915; Mobile Pure Milk Co. v. Coleman, 26 Ala.App. 402, 161 So. 826.

Appellant further contends that in order to entitle the owner or user of an automobile to the general affirmative charge, the administrative presumption that the operator of the car is the servant, agent or employee of such owner or user acting within the line and scope of his employment, must be rebutted by undisputed, clear and convincing evidence that such operator either was not a servant, agent or employee of the defendant or was not acting within the line and scope of his employment at the time of the accident. Cited to support this statement are, among other cases, Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; Cox v. Roberts, 248 Ala. 372, 27 So.2d 617; Barber Pure Milk Co. v. Holmes, supra.

All of the foregoing cases, except Sears, Roebuck & Co. v. Hamm, appear to involve situations where there was proof that the defendant owned the vehicle. In Sears, Roebuck & Co. v. Hamm, supra, it was held that the administrative presumption arises where it is shown that the defendant has such an interest and control over the vehicle (although such interest is less than full ownership) that the administrative presumption is indulged where the vehicle is driven by a person who has no interest therein.

But all of the cited cases are distinguishable from the decision...