Craft v. Koonce, 8 Div. 967.

• Decision Date: 16 March 1939
• Docket Number: 8 Div. 967.
• Citation: 187 So. 730,237 Ala. 552
• Parties: CRAFT v. KOONCE ET AL.
• Court: Alabama Supreme Court

187 So. 730

237 Ala. 552

CRAFT v. KOONCE ET AL.

8 Div. 967.

Supreme Court of Alabama

March 16, 1939

Rehearing Denied April 13, 1939.

Appeal from Law and Equity Court, Lauderdale County; Robt. M. Hill Judge.

Action by W. L. Craft against E. R. Koonce and W. O. Perritt, doing business as Koonce-Perritt Chevrolet Company, for damage to plaintiff's automobile resulting from an automobile collision. Judgment for defendants, and plaintiff appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Fred S Parnell, of Florence, for appellant.

A. A Williams, of Florence, for appellees.

FOSTER Justice.

This case was here on former appeal. 234 Ala. 278, 174 So. 478.

Upon a second trial, the presiding judge gave the affirmative charge for the defendant. The first question, therefore, is whether that charge was without error on the evidence allowed by the court to come into the trial: if so, then whether there was error in rulings excluding evidence which, if admitted, would have been sufficient to take the issue to the jury.

Appellant sued appellees for damages caused to his car in a collision with one of appellees, being driven at the time by an employee Miss Martin. If she was doing so in the line and scope of her employment, the affirmative charge was not due to have been given for defendants. Without dispute the car was one owned by defendants who were engaged in the automobile business in Florence. Miss Martin had been in their employ about a year as bookkeeper and stenographer. She testified, without dispute, that between 3 and 4 o'clock in the afternoon she left the office, in the absence of both defendants and without their knowledge and consent, and got into one of their cars and had started to her home to change her clothes and dress for a party that afternoon, to which she intended going after her work hours, when she would not have time to do so and get to the party on time. On that trip home this collision occurred.

Both defendants testified, and it was not disputed, that they had instructed all employees not to use defendants' cars unless they were sent upon some mission by defendants. That Miss Martin had no authority to use their cars except when they sent her to do some act for them, such as to make collections; that she had no authority to go out in a car and collect money or to go to the bank and make deposits except as instructed.

While Miss Martin was being cross-examined as a witness for the defendants, the court sustained an objection to a question to her in the form of a predicate, to inquire if she did not at a certain time and place and in the presence of certain named persons say that she was out collecting for defendants. Notwithstanding such ruling, the witness answered that she made no such statement. Whereupon plaintiff offered to show by one of those alleged to be present that she did make that statement. The court sustained objection to that proposal.

Plaintiff had prior to the laying of such predicate asked other witnesses with reference to the same conversation, and the court sustained objection to it. And to one of the witnesses the question was whether the conversation was in the presence of one of the defendants, naming him. This was also excluded. It was not a part of the res gestae of the accident.

1. Was the affirmative charge improperly given for defendants? In this connection it is appropriate to refer to our principle that when the automobile, which is involved in an accident, is shown to belong to defendants at the time it was being operated, the law will raise an administrative presumption that the person who was then operating it was doing so as the agent of defendants, and in the line and scope of his authority. Alabama Power Co. v. McGehee, 228 Ala. 505, 154 So. 105; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897, and cases cited.

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...