Auburn Sales Co. v. State

• Decision Date: 16 May 1929
• Docket Number: 6 Div. 299.
• Parties: AUBURN SALES CO. v. STATE.
• Court: Alabama Supreme Court

122 So. 463

219 Ala. 360

AUBURN SALES CO. v. STATE.

6 Div. 299.

Supreme Court of Alabama

May 16, 1929

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by the State to condemn one Auburn 8 roadster automobile, used by Charley Dennison in the unlawful transportation of prohibited liquors, with interposition of claim by the Auburn Sales Company. From a decree for complainant, claimant appeals. Reversed and rendered.

Lange Simpson & Brantley, of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

GARDNER J.

The Auburn automobile here involved was seized in the city of Birmingham by an officer when discovered with prohibited liquors therein. That it was subject to seizure is not questioned. The Auburn Sales Company interposed claim thereto, and upon the hearing before the chancellor the car was condemned for sale, from which decree the claimant appeals.

Under the rule recognized as applicable to this statute (section 4778, Code of 1923), if claimant had no notice or knowledge that the car was to be used for any unlawful purpose, or no notice or knowledge of any fact calculated to excite suspicion, so as to put a reasonably prudent person on inquiry as to such intended use, then inquiry on its part was not demanded. "This rule was adopted as reasonable and just, and as expressive of the legislative intent that innocent parties free from fault should not suffer loss through the wrong of another." Edwards v State, 213 Ala. 122, 104 So. 255. "The notice necessary to excite suspicion and stimulate inquiry may be slight, but, in any event, will necessarily be left to the determination of the facts in each particular case. It may be a notice imputed by law, such as general character of the purchaser as a violator of the prohibition law." Edwards v. State, supra; Koger v. State, 215 Ala. 319, 110 So. 573; Glover v. State, 205 Ala. 446, 88 So. 437; Wright Motor Co. v. State, 214 Ala. 120, 106 So 868; Gen. Motor Acceptance Corporation v. State, 217 Ala. 571, 117 So. 181.

At the time of the seizure (2 o'clock of the afternoon of November 8, 1928) the car was being driven by one Charlie Dennison, who has a reputation in that community as a dealer in prohibited liquors. Had claimant knowingly placed its car in Dennison's possession, a different situation would be presented. Parker v. State (Ala. Sup.) 122 So. 464, present term. But such was not the case.

The evidence for claimant first establishes the ownership of this car and its use by the sales agent as a demonstrator. If this agent's testimony is to be believed, the possession of the car obtained from him amounted to theft by trickery. He states that about 11 o'clock of the morning of November 8th, a man and a woman drove up to the claimant's place of business in a Stutz roadster. The man gave his name as Smith, and posed as a prospective purchaser of a car, and wanted a roadster. No new roadster was in stock, but the agent showed him this Auburn 8 roadster, which he used as a demonstrator. The prospect appeared interested, and, after some discussion as to the engine and the tires, asked if there would be any objection should he take the car to his mechanic, saying he would let his car and his wife remain there during the time. The woman remained in the prospect's car (Stutz roadster), the agent talking to her, some 30 minutes, when she suggested some mishap, and that, as she knew where he was going to take the car, she would go and see what was the trouble, and drove off. The couple not returning, a search...