Chandler v. Owens, 7 Div. 487

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, Justice.
Citation179 So. 256,235 Ala. 356
Decision Date17 February 1938
Docket Number7 Div. 487
PartiesCHANDLER v. OWENS et al.

179 So. 256

235 Ala. 356

CHANDLER
v.
OWENS et al.

7 Div. 487

Supreme Court of Alabama

February 17, 1938


Appeal from Circuit Court, Cleburne County; Lamar Field, Judge.

Action by Arabel A. Chandler against J.A. Owens and another for injuries sustained in an automobile collision. From a judgment for defendants, the plaintiff appeals.

Reversed and remanded. [179 So. 257]

E.B. Parker, of Roanoke, and E.L. Roberts and McCord & McCord, all of Gadsden, for appellant.

Merrill & Merrill, of Heflin, and Merrill, Jones & Merrill, of Anniston, for appellees.

GARDNER, Justice.

Plaintiff was a guest passenger in an automobile driven by one Dryden when it collided with a Ford coupé or cabriolet, operated by one Fred Banks, a colored boy in defendants' employ at their mercantile establishment at Heflin, Ala., and brings this suit for recovery of the damages therein sustained.

Upon conclusion of the evidence the trial court gave for defendants the affirmative charge, duly requested, and defendants' argument concerning this action of the court appears to be based upon the theory this was all that was done in this regard. But the trial court did more than give the affirmative charge with the usual hypothesis, as his oral instructions placed a limitation thereon, and in practical effect amounted to a directed verdict. In giving the charge, the court informed the jury that as a matter of law, Fred Banks, the driver of the coupé, was not acting within the line and scope of his authority as the servant or agent of defendants, and no liability, of consequence, could be fastened upon them. "And you will sign this form of verdict: We, the jury, find the issues in favor of defendants." Plaintiff duly reserved exception.

Undisputedly the Ford car belonged to defendants and was being driven by Fred Banks, their employee, who was and had been for nearly three years in their employ, principally as a delivery boy, but doing other work when directed. Nor is it insisted the matter of negligence was not one for the jury's consideration.

The issue of prime importance related to the single question whether or not Banks at the time was acting within the line and scope of his authority.

Under our authorities, proof of ownership of the car in defendants, and [179 So. 258] that the driver was their chauffeur, or in other employment involving the driving of a car in the conduct or promotion of the business in which he was employed, sufficed to raise an administrative presumption that the driver was acting within the line and scope of his employment at the time. Penticost v. Massey, 201 Ala. 261, 77 So. 675, 677; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816, 818; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Jefferson County Burial Soc. v. Cotton, 222 Ala. 578, 133 So. 256.

And in Toranto v. Hattaway, supra, it was observed that: "In the nature of the case the presumption indulged where the negligent driver is shown to be a regular chauffeur, or employé using the car in the master's business, is stronger than where there is mere proof of ownership." But the presumption thus raised is a rebuttable one, and if the evidence in rebuttal is undisputed, clear, and convincing, the defendant is entitled to the general affirmative charge. Penticost v. Massey, supra; Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Ford v. Hankins, supra, and Toranto v. Hattaway, supra. "If the evidence thereon is in conflict, or leads to doubtful inference only, the issue should go to the jury." Toranto v. Hattaway, supra.

And Ford v. Hankins, supra, affords an illustration where the rebutting proof was so weighted by circumstances tending to bring it into suspicion and doubt as to render it not clear and convincing, and of consequence the question was held to be one for the jury's consideration.

It appears, therefore, that under the undisputed proof, plaintiff had made out a prima facie case for the jury.

In the Penticost Case, supra, involving, as here, a directed verdict for...

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