Chandler v. Owens
| Decision Date | 17 February 1938 |
| Docket Number | 7 Div. 487 |
| Citation | 179 So. 256,235 Ala. 356 |
| Parties | CHANDLER v. OWENS et al. |
| Court | Alabama Supreme Court |
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.
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.
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 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 defendant, it was said that And the court then further observed, as directly applicable here: "We have dealt with the case as presented by this record, wherein the court took the case from the consideration of the jury, leaving nothing for their determination as to the credibility of the evidence offered." Reference was made to Shipp v. Shelton, 193 Ala. 658, 69 So. 102, where many illustrative cases were cited.
But we have said enough, in the light of these authorities, to demonstrate, we think, that reversible error was committed in the action of the court in giving a directed verdict for defendant.
But the directed verdict question aside, we are persuaded the proof sufficed for the jury's consideration, and that the general affirmative charge was not defendants' due.
There is evidence to the effect that Fred Banks had for some days been in use of this Ford coupé to make deliveries of merchandise while the truck ordinarily used for that purpose was in the county for the purpose of demonstrating stoves, and that in fact Banks had been so using the coupé the day of the accident. Banks testified that on the occasion when this collision occurred, he had taken the coupé for his own personal use, without the knowledge or consent of defendants, to carry home some lard and meat or sausage, which he purchased at a store near defendants' mercantile establishment, and was on his return trip to defendants' place of business. The time consumed was less than an hour (about forty minutes, to be exact), and his home not far distant. Defendants carried lard in their stock of merchandise, and the time of this trip was within an hour of closing time for defendants when Banks would be released for the day.
Defendants offered their evidence, and that of their...
To continue reading
Request your trial