Constitution Pub. Co. v. Dale
| Decision Date | 07 November 1947 |
| Docket Number | No. 11909.,11909. |
| Citation | 164 F.2d 210 |
| Parties | CONSTITUTION PUB. CO. et al. v. DALE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles W. Greer and Geo. W. Yancey, both of Birmingham, Ala., for appellants.
D. G. Ewing and Earl McBee, both of Birmingham, Ala., for appellee.
Before McCORD, WALLER, and LEE, Circuit judges.
Plaintiff in the court below, appellee here, as administrator of the estate of Neoma Dale, deceased, brought an action in the Circuit Court of Alabama, under the Alabama homicide statute, Code 1940, Tit. 7, § 123, against defendants, Constitution Publishing Company, Theatre Service Company, and one Wootsie Conger, jointly, for the wrongful death of plaintiff's intestate. On petition of the defendants, all citizens of Georgia, the action was removed to the District Court, S.D.N.D., Alabama. Subsequently, Wootsie Conger was dismissed as a party defendant.
Plaintiff alleged that on the early morning of November 25, 1945, a truck belonging to defendants Theatre Service Company and Constitution Publishing Company, and driven by Wootsie Conger, defendants' employee, collided with an automobile in which plaintiff's intestate was riding as a passenger. Plaintiff's intestate was killed as a result of the collision. The truck bore on its side the words "Atlanta Constitution" as well as the word "Mail" and the name of the Theatre Service Company. Answers to interrogatories submitted by plaintiff to the defendant Theatre Service Company, and by plaintiff introduced in evidence as part of his case, showed that Theatre Service Company was the owner of the truck and the employer of Conger, and that it was a corporation organized to engage in the business of a common carrier. What if any answers to the interrogatories submitted to it were made by the Publishing Company, does not appear. The jury's verdict was for the plaintiff against both corporate defendants, and the question before us is whether there was evidence sufficient to support that verdict.
The Theatre Service Company, in addition to admitting ownership of the truck and employment of the driver Conger, further admitted that at the time of the accident Conger was acting within the scope of his employment and in furtherance of the business of his employer. There was evidence tending to show negligence on the part of Conger, and there was also evidence tending to show that the deceased might have been contributorily negligent. A question for the jury was thus presented, and we cannot say that as a matter of law the evidence against the Theatre Company under the doctrine of respondeat superior was insufficient to support the verdict.
The case is otherwise as to the defendant Publishing Company. As to it, plaintiff's claim of liability rests upon two contentions: (1) that the trade name "Atlanta Constitution" written upon the truck raises a presumption of ownership, absent any proof to the contrary; and (2) that even if that were not so, the Publishing Company and Theatre Service Company are to all intents and purposes one corporation, and hence the Publishing Company is liable for the torts of the Theatre Company as though it itself had committed the negligent act.
With respect to those contentions, the Alabama law must be our guide. Under that law, it is not clear whether the fact that the trade name "Atlanta Constitution" was on the truck is alone sufficient to raise a presumption of ownership by the Publishing Company. Assuming arguendo that it is, the presumption is not evidence of ownership, but only takes the place of evidence unless and until other evidence is produced to rebut it. Further, under the Alabama law an owner of a vehicle is liable for the negligence of the driver only when it is shown that the driver was the agent of the owner and acting within the scope of his authority and in furtherance of the owner's business. Upon proof of ownership of the vehicle, a presumption of agency arises, which, like the presumption of ownership itself, takes the place of evidence only until rebutted. Under the facts in this case, the liability of the Publishing Company as owner of the truck would be predicated upon the presumption of agency, that presumption itself being based upon the presumption of ownership arising out of the company's trade name being on the truck. The rule against basing one presumption or inference upon another holds in most jurisdictions, although the case of Cox v. Roberts, 248 Ala. 372, 27 So.2d 617, casts some doubt as to the rule in Alabama. Whatever the rule there, it is not material to the decision of the case before us, for plaintiff's own evidence, introduced by way of the answers to the interrogatories, shows that Theatre Service Company was the owner of the truck and the employer of Conger. That evidence will not support a reasonable inference that the Publishing Company owned or jointly owned the truck, nor that it was the employer or joint-employer of Conger. The rule is that where a defendant produces clear and undisputed evidence that he is not the owner, he is entitled to the...
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