Cox v. Roberts

• Decision Date: 17 October 1946
• Docket Number: 6 Div. 390.
• Citation: 27 So.2d 617,248 Ala. 372
• Parties: COX v. ROBERTS.
• Court: Alabama Supreme Court

27 So.2d 617

248 Ala. 372

COX v. ROBERTS.

6 Div. 390.

Supreme Court of Alabama

October 17, 1946

Rehearing Denied Nov. 7, 1946.

Appeal from Circuit Court, Jefferson County; Whit Windham Judge.

Chas. W. Greer, of Birmingham, for appellant.

Jackson, Rives & Pettus, of Birmingham, for appellee.

PER CURIAM.

The majority of the court concur in the opinion of Justice LAWSON, appearing below, except in the one particular instance as to the action of the court in giving Charge No 36 at defendant's request. As to this charge, we entertain the view there is no conflict in this given charge and that given for the plaintiff as to the question of agency. That the charge given for defendant correctly stated the law is not questioned, and we entertain the view that if in fact there was any misleading tendency in view of the charge given for plaintiff, it was one (readily) to be remedied by explanatory charge.

We therefore conclude the case should be affirmed.

Affirmed.

GARDNER C. J., and FOSTER, LIVINGSTON, and STAKELY, JJ., concur.

BROWN LAWSON, and SIMPSON, JJ., dissent.

LAWSON, Justice (dissenting).

This is a suit for personal injuries brought by appellant against appellee, A. B. Roberts, and his daughter-in-law, Mrs. Lillian Roberts. Appellant alleged that he received injuries as a result of being hit by an automobile owned by appellee and driven by Mrs. Lillian Roberts while acting within the line and scope of her employment as an agent, servant or employee of the said A. B. Roberts.

The plaintiff amended his complaint by striking Mrs. Lillian Roberts as a party defendant. In so far as the pleadings are concerned, the case was submitted to the jury upon one count of the complaint charging simple negligence and defendant's plea of the general issue in short by consent, etc.

There were verdict and judgment for defendant. Plaintiff filed motion for new trial, which was overruled, and has appealed to this court from the final judgment, and from the judgment of the lower court upon the motion for a new trial.

In order for the plaintiff to recover against A. B. Roberts in this case it was necessary for him to show, besides the negligence of Mrs. Lillian Roberts in the operation of the car, that Mrs. Lillian Roberts was an agent of A. B. Roberts acting within the line and scope of her authority as such, at the time of the collision.

It was agreed between the parties to this suit that the license number (tag) on the automobile at the time of the collision was in the name of the defendant, A. B. Roberts. This admission raised the presumption that the car belonged to the said A. B. Roberts. Patterson v. Millican, 12 Ala.App. 324, 66 So. 914; Ford v. Hankins, 209 Ala. 202, 96 So. 349.

Under the recent decisions of this court, when the plaintiff in a damage suit for the negligent operation of an automobile proves that the car causing the damage was owned by the defendant, the law raises a presumption that the person who was operating the car at the time of the collision was operating it as the owner's agent, and was acting within the line and scope of his authority. Dowdell et al. v. Beasley, 205 Ala. 130, 87 So. 18; AEtna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Ford v. Hankins, supra; Freeman v. So. Life & Health Ins. Co., 210 Ala. 459, 98 So. 461; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Jefferson County Burial Society v. Cotton, 222 Ala. 578, 133 So. 256; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Grimes v. Fulmer, 235 Ala. 645, 180 So. 321; Craft v. Koonce, 237 Ala. 552, 187 So. 730; Chandler v. Owens et al., 235 Ala. 356, 179 So. 256; Slaughter v. Murphy, 239 Ala. 260, 194 So. 649.

As to the nature or character of this presumption, it is said in Tullis v. Blue, supra [216 Ala. 577, 114 So. 187]: 'It is well settled that those presumptions do arise from proof of the defendant's ownership of the vehicle; but it is well settled also that they are prima facie presumptions merely, or, as they are sometimes called, administrative presumptions, based upon considerations of fairness and convenience in placing the burden of proof. They are not in themselves evidence, and in practice their effect is merely to impose upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment.'

In Cruse-Crawford Mfg. Co. v. Rucker, supra, it was held that this presumption 'is not an inference of fact, and that it has no intrinsic value as an inference, but that it serves in the place of evidence only until evidence to the contrary is adduced when it becomes functus officio.' And in Craft v. Koonce, supra, [237 Ala. 552, 187 So. 731], in dealing with the character of this presumption, it was said as follows: 'This is a procedural expedient and takes the place of evidence respecting matter peculiarly known to defendants, but necessary to sustain plaintiff's cause of action, and is distinguishable from an inference of fact properly deducible from what is proven. When plaintiff proves such ownership of the car by defendant, and thereby brings into being the presumption to which we have referred, he need not offer further proof that the operator of the car was the agent of defendant, and in the line and scope of his authority, until and unless defendant has offered proof that he was not acting for defendant in the line and scope of his authority.'

This presumption is, of course, rebuttable and if the evidence is strong, clear and undisputed to the effect that the operator of the car at the time of the collision was not acting as the agent of the owner or was not within the line and scope of his authority, the owner defendant would be entitled to the general affirmative charge with hypothesis when requested in writing. Dowdell v. Beasley, supra; Tullis v. Blue, supra; Toranto v. Hattaway, supra; Cruse-Crawford Mfg. Co. v. Rucker, supra; Mobile Pure Milk Co. v. Coleman, supra; Craft v. Koonce, supra.

But where the rebutting proof of the owner defendant is weighted by circumstances tending to bring it into suspicion and doubt or is of such a character as to support a reasonable inference that the car was being operated in the owner's business or for his pleasure or benefit, the general affirmative charge with hypothesis should not be given at the request of the defendant. Massey v. Pentecost, supra; Ford v. Hankins, supra; Grimes v. Fulmer, supra; Chandler v. Owens et al., supra.

As to the rights of a plaintiff who has proven ownership of the car in a defendant, who has offered no countervailing evidence, it was said in Slaughter v. Murphy, supra [239 Ala. 260, 194 So. 650], as follows: 'Where the plaintiff makes a prima facie case, showing ownership of the truck by defendant and agency of its driver at the time and place of collision, one or both, with the other elements of liability, in absence of countervailing evidence, plaintiff is entitled to the duly requested affirmative charge. Reynolds v. Massey, 219 Ala. 265, 122 So. 29; Craft v. Koonce, 237 Ala. 552, 187 So. 730.' Under the above referred to decisions of this court, the evidence tending to show ownership of the car in defendant, it was incumbent upon him to bring forward proof to rebut the presumption of agency of Mrs. Lillian Roberts. This he did not do. There is absolutely no evidence which even remotely tends to rebut that presumption. The defendant, A. B. Roberts, did not testify, but the driver of the car, Mrs. Lillian Roberts, and another occupant, Miss Elsie Roberts, a daughter of A. B. Roberts, did testify in his behalf. But their evidence tends to support the presumption of agency rather than rebut it. Mrs. Lillian Roberts on direct examination stated that she was driving the car of A. B. Roberts. Miss Elsie Roberts, on cross-examination, testified that she was in the car at the time of the collision and that she and Mrs. Lillian Roberts were at that time enroute home from the 'bus depot' where they had been for 'Mr. Roberts.' That is the extent of their testimony as it relates to ownership of the car or agency of the driver.

The plaintiff requested the general affirmative charge with hypothesis on the question of the agency of the driver of the car. It was given in the following language: '2. I charge you that if you believe the evidence Lillian Roberts was on the occasion complained of a servant, agent or employee of the defendant and was, on said occasion, acting within the line and scope of her employment as such servant, employee or agent of said defendant.' This charge was properly given under the following decisions of this court: Kelly v. Hanwick, 228 Ala. 336, 153 So. 269; Slaughter v. Murphy, supra; Craft v. Koonce, supra.

Although the court gave the abovequoted charge for plaintiff, it thereafter gave at the request of the defendant the following charge: '36. Before you can find a verdict in favor of the plaintiff and against the defendant in this cause you must be reasonably satisfied from the evidence in this case that the driver of said automobile, Lillian Roberts, in and about the operation or control of said automobile at the time and place complained of, negligently failed to exercise that degree of care which a reasonably prudent person would have exercised in the same situation and under the same circumstances, and that such negligence proximately caused the plaintiff's alleged injuries; and you must be further reasonably satisfied by the evidence in the case before you can return a verdict against the defendant, A. B. Roberts,...