Feore v. Trammel

• Decision Date: 11 June 1925
• Docket Number: 1 Div. 348
• Citation: 104 So. 808,213 Ala. 293
• Parties: FEORE v. TRAMMEL.
• Court: Alabama Supreme Court

104 So. 808

213 Ala. 293

FEORE v. TRAMMEL.

1 Div. 348

Supreme Court of Alabama

June 11, 1925

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by Ruby M. Trammel against Anna M. Feore. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 102 So. 529.

It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given.

These excerpts from the oral charge of the court were excepted to by defendant:

"Now, the question as to the title to the automobile in question--that is not the controlling factor of liability in this case. The defendant could be liable, or could not be liable, if she in fact owned the Maxwell automobile, or she could be, or could not be, liable if she did not own the Maxwell automobile."

"So, likewise, is the question of the paternal relationship of the daughter in the case to the mother. Ordinarily that is a matter immaterial to lawsuits in an ordinary proposition where a child is 21--ordinarily that is not a material issue in the case, but in the incident [instant] case the relationship of the family living under one roof is a matter which may be taken by the jury into consideration in arriving at whether or not, at the time of the accident, the daughter, Miss Esther Feore, was then and there carrying out as an agent or servant the instructions of her mother."

"However, the relationship of mother or daughter or whatever that relationship, there is no presumption of agency on the part of this young lady other than what the evidence discloses under all of the circumstances in the case; and what inference you may reasonably draw from the fact, if it be a fact, and it be established to your reasonable satisfaction by the evidence in the case, that she was, at the time, living in the same house with her mother and whether or not she was at that time doing errands for and at the instance of her mother, either by express or implied instructions, is a question for you to determine and the court has nothing to intimate as to the course you should pursue on that subject."

These charges were given for plaintiff:

"(1) If the jury are reasonably satisfied from the evidence that the defendant was the owner of the automobile that collided with the automobile in which the plaintiff was riding, and that her daughter Miss Esther Feore at the instance of defendant, express or implied, drove such automobile for the purpose of carrying her sister, Miss Barbara Feore, to school, and had no other purpose in driving said automobile on that occasion, and had carried her said sister to school, and while returning therefrom the collision took place, and that such collision was proximately caused by the negligent driving of said Esther Feore, they ought to find a verdict for the plaintiff.

"(2) If the jury are reasonably satisfied from the evidence that the defendant made a verbal gift to her daughter Esther Feore, of the automobile that the daughter was driving at the time of the collision with the automobile in which the plaintiff was riding, but they are not reasonably satisfied from the evidence that the custody, control, management, and use of the automobile passed from the defendant to her said daughter, and that the automobile was possessed by the daughter, then in considering their verdict they should treat the automobile as the property of the defendant.

"(3) A verbal gift of an automobile does not operate to transfer the property to the person to whom the gift is made until the custody, control, management, and use of the property passes from the giver to the person to whom the gift is made and is possessed by such person.

"(4) The court instructs the jury that, if you are reasonably satisfied from the evidence in this case that the automobile driven by Miss Esther Feore at the time of the accident belonged to Mrs. Anna M. Feore, the defendant in this case, and she instructed her daughter to take Miss Barbara Feore to school on the morning of the accident, and Miss Esther Feore, obeying the instructions of her mother drove Miss Barbara Feore to school, and at the time of the accident she was returning home, and had no other purpose in driving said automobile on that occasion, then she was acting within the line or scope of her employment by the defendant, and the fact that she was not taking the most direct route to go home, would not necessarily take her without the line or scope of her employment by her mother, and if you are further reasonably satisfied from the evidence in this case that Miss Esther Feore negligently drove her car against the car in which the plaintiff was riding and as a proximate result of such negligence the plaintiff was injured, you should find a verdict for the plaintiff."

These charges were refused to defendant:

"(18) The court charges the jury that they must find a verdict for the defendant, unless they are reasonably satisfied from the evidence in this case that the automobile was being driven by the said Esther Feore in furtherance of the business of the defendant, and that it was used under the control of the defendant and connected with her affairs.

"19. The court charges the jury that, if they are reasonably satisfied from the evidence that the defendant merely permitted her daughter Esther Feore to operate the car for the daughter's own pleasure, they cannot find a verdict for the plaintiff.

"(20) The court charges the jury that, if the said automobile was being driven by Esther Feore for her own pleasure or on her own business, and was not being driven in furtherance of the defendant's business, the defendant is not liable, and your verdict must be for the defendant.

"(21) The court charges the jury that, if they are reasonably satisfied from the evidence that the defendant merely permitted the daughter to use the automobile for her own business or pleasure, the defendant is not liable for the daughter's negligence in driving or operating said automobile, and you must find a verdict for the defendant."

"(52) The court charges the jury that, if they are reasonably satisfied from the evidence in this case that the automobile was being driven by Esther Feore on her own business or pleasure, you cannot find a verdict for the plaintiff under the third count of the complaint."

"(66) The court charges the jury that they cannot find a verdict for the plaintiff under the third count of the complaint unless they are reasonably satisfied from the evidence in this case that the automobile was being driven by the said Esther Feore in furtherance of the business of the defendant, and that it was used under the control of the defendant and connected with her affairs."

"(68) The court charges the jury that, if they are reasonably satisfied from the evidence that the defendant merely permitted her daughter, Esther Feore, to operate the car for the daughter's own pleasure, they cannot find a verdict for the plaintiff under the third count of the complaint."

"(70) The court charges the jury that, if the said automobile was being driven by Esther Feore for her own pleasure or on her own business, and was not being driven in furtherance of the defendant's business, the defendant is not liable, and you cannot find a verdict for the plaintiff under the third count of the complaint."

"(72) The court charges the jury that, if they are reasonably satisfied from the evidence that the defendant merely permitted her daughter to use the automobile for her own business or pleasure, the defendant is not liable for the daughter's negligence in driving or operating said automobile, and you cannot find a verdict for the plaintiff under the third count of the complaint."

"B. The court charges the jury that, if they are reasonably satisfied from the evidence that Esther Feore was acting as the servant or agent of the defendant within the line and scope of her employment when she carried her sister to school, you cannot find for the plaintiff if you also find from the evidence that after leaving her sister at school she then drove the automobile on a mission of her own or for her own pleasure.

"C. The court charges the jury that, if you find from the evidence that after Esther Feore had carried her sister to school she then drove the automobile on a mission of her own or for her own pleasure, you cannot find for the plaintiff.

"D. The court charges the jury that, if they believe from the evidence that Esther Feore had completed the mission assigned her by the defendant when she left Barbara Feore at school, you cannot find for the plaintiff."

Inge & Bates, of Mobile, for appellant.

Smiths, Young, Leigh & Johnston, of Mobile, for appellee.

SAYRE J.

The action is by appellee for personal injuries suffered in a collision between two automobiles at the intersection of Conti and Bayou streets in the city of Mobile. The car for the operation of which appellant was held responsible was being driven by her daughter Esther south on Bayou street; appellee was a guest in the other car driven by Miss Mott east on Conti street. By an ordinance of the city cars moving east or west have the right of way over cars moving north or south at street intersections. There can be no doubt that the question of negligence involved was a question for the jury. The issue most actively litigated is whether defendant, Mrs. Feore, should be held to answer for the negligence of her daughter on the principle of respondeat superior, and this issue is presented by rulings on questions of evidence, exceptions to parts of the oral charge, and special instructions in writing given and refused. We have found no better way to treat these questions than to state them seriatim as they appear in the assignments of error.

The...