Armstrong v. Sellers

• Decision Date: 17 April 1913
• Citation: 62 So. 28,182 Ala. 582
• Parties: ARMSTRONG v. SELLERS et al.
• Court: Alabama Supreme Court

62 So. 28

182 Ala. 582

ARMSTRONG v. SELLERS et al.

Supreme Court of Alabama

April 17, 1913

Rehearing Denied May 8, 1913

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action by Aurora E. Armstrong against Ira J. Sellers and wife and another. From a judgment for the named defendants, plaintiff appeals. Affirmed.

London & Fitts, of Birmingham, for appellant.

Burgin Jenkins & Brown, of Birmingham, for appellees.

SAYRE J.

Appellant was injured, while on a public street of the city of Birmingham, by an automobile driven by the defendant Crenshaw. For her injury thus sustained appellant had judgment against Crenshaw, of which the latter does not complain. But the machine was the property of the defendant Dr. Ira J. Sellers, and in it at the time was his wife, who is also sued. Of the judgment acquitting the last-named two defendants the appellant does complain, and she appeals to this court for a reversal.

Mrs Sellers was in the habit of using the machine for her own pleasure, with the knowledge and consent of her husband, the defendant Dr. Sellers, frequently operating it with her own hands. At the time of plaintiff's injury the machine was being driven by the defendant Crenshaw, who was taking Mrs Sellers and some children to a baseball game. There was nothing to indicate that any member of the family had a right to command the services of Crenshaw. He was a boarder or a guest in the family, the trip was taken on his suggestion and invitation, and it may be assumed that he was accorded the privilege of using the machine when not otherwise in demand, and that on the particular occasion he had a loan of it. Doctor Sellers was not aware of the use of the car at the instant time; nor were any of the persons in the car then on any particular errand or business of his. For reasons which found statement in Parker v. Wilson, 60 So. 150, Dr. Sellers was not liable on the facts shown, unless his liability can be worked out through statutes of the state, then of force, providing and requiring that "the owner or custodian of any automobile, locomobile, or motor vehicle shall, within ten days after acquiring the same, register such vehicle in the office of the probate judge of the county of the residence of the owner, or in which said vehicle is to be run or operated, in a book to be kept for that purpose by said judge," etc. (Code, § 3012), and making it "unlawful for any person to run, operate, or drive any automobile, locomobile, or other motor vehicle of like kind on the public roads and highways of this state without first registering same as provided" in section 3012 (Code, § 6322), and punishing any violation of section 6322 as a misdemeanor (Code, § 6327). These statutes were a crude and incompetent provision for the purpose of police protection, which induced their legislative adoption, and have been superseded by more comprehensive and carefully considered provisions, but whatever virtue they had must, for the purposes of this suit, brought while they were of force, be made effectual; for section 95 of the Constitution provides that, "after suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit."

These statutes imposed no liability upon either Dr. or Mrs. Sellers on the facts shown in this case. It may well be that all the defendants were entitled to the general charge as to those counts which proceeded upon the theory of responsibility under the aforementioned statutes and apart from any question of diligence in the operation of the automobile, because those statutes did not deny them the right to operate an unregistered machine for 10 days after acquiring the same and there was no evidence to support a finding that any of the defendants had acquired the machine more than 10 days before the time of plaintiff's injury. But aside from this, there are reasons why the statutes had no operation in the case shown by the evidence. If that part of the statute law which provides for registration stood alone, were unre-enforced by the criminal provision, no causal connection could be traced between the owner's failure to comply and plaintiff's hurt. It provided for nothing but registration and a certificate thereof. It prescribed no...