Chiniche v. Smith

• Court: Supreme Court of Alabama
• Writing for the Court: FAULKNER; TORBERT, C. J., concurs specially, with whom ALMON; TORBERT; ALMON
• Citation: 374 So.2d 872
• Parties: Willis Eugene CHINICHE, a minor, etc. v. Walter G. SMITH et al. 78-419.
• Decision Date: 07 September 1979

Page 872

374 So.2d 872 Willis Eugene CHINICHE, a minor, etc.
v.
Walter G. SMITH et al. 78-419. Supreme Court of Alabama. Sept. 7, 1979.

Mark B. Reed of McDermott, Slepian, Windom & Reed, Mobile, for appellants.

Robert E. McDonald, Jr., Mobile, for appellees.

FAULKNER, Justice.

This is an appeal from the grant of a summary judgment for defendants Walter G. Smith and Bonnie Smith made final by a determination and entry pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure. We reverse.

Page 873

Willis Chiniche, a minor, suing by and through his mother and next friend, Leona Fratto, and Ms. Fratto individually filed suit in three counts for Chiniche's injuries sustained as a result of a motorcycle-automobile accident where he was a passenger on the motorcycle of Walter Gerald Smith. Count One, sounding in simple negligence, was brought against defendants Billy Gene Kimbrell, Jr. and Billy Gene Kimbrell, Sr. and is not involved in this appeal. Count Two, based on negligent entrustment, was brought against Walter G. Smith and Bonnie Smith for their conduct with regard to their grandson Walter Gerald Smith's operation of a motorcycle. Count Three, also against Walter G. Smith and Bonnie Smith, made substantially the same allegations as Count Two but based liability on the wantonness of the Smiths.

The Smiths filed motions for summary judgment supported by their affidavits. Mr. Smith's affidavit stated that his grandson had come to his house about two weeks prior to the accident to stay temporarily and that his grandson did not have the motorcycle when he arrived. He further stated that he did not know his grandson owned a motorcycle, that his grandson had the motorcycle without his knowledge or permission, and that he did not purchase the motorcycle, nor was his grandson under his custody or control at the time the motorcycle was purchased. Mrs. Smith's affidavit stated that she knew her grandson's mother had purchased the motorcycle for him but during the two weeks he was staying at her house the motorcycle was not at her residence until the night before the accident. She further stated at that time she instructed her grandson that the motorcycle was not to leave the yard and was not to be operated until his mother came for him. She also stated that her grandson left on the motorcycle the morning of the accident without her knowledge or permission and she did not see or hear him leave.

The plaintiffs submitted a brief in opposition to the motions for summary judgment which set forth certain portions of the depositions of Walter Gerald Smith, the grandson, taken on May 17, 1976 and November 11, 1977, tending to show that his grandparents did allow him to operate the motorcycle with their permission or acquiescence while he was within their custody or control, although they knew he did not have a license to operate the motorcycle.

The trial court entered an order granting Walter G. and Bonnie Smith's motions for summary judgment and dismissing the plaintiffs' causes of action with prejudice as to Walter G. and Bonnie Smith. Plaintiffs appealed and were twice dismissed for failure to properly comply with ARCP 54(b). A final judgment dismissing all of plaintiffs' claims against Walter G. Smith and Bonnie Smith was entered by the trial court on April 5, 1979. Plaintiffs assert on this appeal that sufficient evidence was presented to the trial court supporting their theory or theories of liability to defeat summary judgment.

To decide an appeal from a summary judgment this Court looks to the same factors the trial court initially considered in ruling on the motion. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976); Long v. Bankers Life & Casualty Co., 294 Ala. 67, 311 So.2d 328 (1975). ARCP 56(c) states that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." All reasonable inferences from the facts are to be viewed most favorably to the non-moving party and the moving party must establish that the other party could not recover under "any discernable circumstances." Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975). The scintilla evidence rule requires that if there is even a scintilla of evidence presented to support the non-moving party's position the summary judgment may not be granted. Browning v. Birmingham News, 348 So.2d 455 (Ala.1977); Wilbanks v. Hartselle Hospital, 334 So.2d 870 (Ala.1976).

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The doctrine of negligent entrustment is founded on the primary negligence of the entruster in supplying a motor vehicle to an incompetent driver, with manifestations of the incompetence of the driver as a basic requirement of a negligent entrustment action. Cooter v. State Farm Fire & Casualty Co., 344 So.2d 496 (Ala.1977). This Court has held that a person under sixteen years old is conclusively presumed incompetent to operate a motor vehicle and that any person who allows such a minor to drive a motor vehicle is negligent as a matter of law. Paschall v. Sharp, 215 Ala. 304, 110 So. 387 (1926); Rush v. McDonnell, 214 Ala. 47, 106 So. 175 (1925). Those cases which concern the statutes dealing with licensing of drivers of motor vehicles, Code 1975, § 32-6-1, Et seq., may be applied by analogy to the statute requiring a person to be at least fourteen years of age to obtain a license to operate a motorcycle. Code 1975, § 32-12-22.

Further, to establish negligent entrustment it is not necessary that the entruster have owned the motor vehicle. Land v. Niehaus, 340 So.2d 760 (Ala.1976). In the Land decision, the father was held liable for injuries negligently caused by his son's operation of a motorcycle even though the father did not own the motorcycle and had not contributed to its purchase. It was sufficient that he knew of his son's incompetence as a driver and negligently failed to control or discipline his child.

Plaintiffs' brief in opposition to the motions for summary judgment set forth the required scintilla of evidence necessary to have made the grant of a motion for summary judgment improper. The depositions of Walter Gerald Smith, the thirteen-year-old grandson, taken on May 17, 1976 and November 11, 1977, although conflicting in some respects, set forth genuine issues as to material facts that should have been submitted to a jury. Before the accident Walter...