Glover v. State

• Decision Date: 07 April 1921
• Docket Number: 6 Div. 93
• Parties: GLOVER v. STATE.
• Court: Alabama Supreme Court

88 So. 437

205 Ala. 446

GLOVER v. STATE.

6 Div. 93

Supreme Court of Alabama

April 7, 1921

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by the State of Alabama, on the relation of its prosecuting attorney, to condemn an automobile because used in transporting prohibited liquors, with claim by Luard Glover. From a judgment of condemnation the claimant appeals. Affirmed.

Lacy Lacy & Shepherd, of Jasper, for appellant.

J.Q Smith, Atty. Gen., for the State.

GARDNER J.

A Ford automobile, found in possession of one Short, and containing prohibited liquors, was seized by an officer, and condemnation proceedings instituted by the state's solicitor. Appellant interposed his claim as the owner of the car. The trial court sustained demurrer to claimant's petition as amended, upon the ground that it failed to allege that claimant could not, by reasonable diligence, have obtained knowledge or notice of the illegal use of the car and this ruling is here assigned as error.

It was held in State v. Crosswhite, 203 Ala. 586, 84 So 813, and State v. One Lexington Automobile, 203 Ala. 506, 84 So. 297, that such petition should contain this averment as in response to the language of the statute. There was a difference of opinion in the court as to what was required by way of proof to meet this averment (State v. One Paige Automobile, 85 So. 276), and upon the proof required these cases have been modified by subsequent decisions. Flint Motor Car Co. v. State, 85 So. 741; One Ford Automobile v. State, 84 So. 760: Bowling v. State, 85 So. 500; One Packard Automobile v. State, 86 So. 21; Briscoe Motor Car Co. v. State, 85 So. 475; Byles v. State, 87 So. 856.

They did not, however, qualify the first-named authorities as to the question of pleading, but only concerning the matter of proof, and the holding there justified the ruling on the demurrer.

Counsel argue that the paragraph added by way of first amendment contained sufficient averments to disclose claimant's ignorance of the use of his car, and therefore he should not have been required to add the amendment--the result of the ruling on demurrer. In view of the rule that pleading is construed most strongly against the pleader, it is doubtful that the language used in the amended petition should be construed quite as strongly as insisted, but, however that may be, if it were shown that claimant was entirely innocent of the use of his car by Short, having no knowledge or notice thereof, or notice of any facts to put him on inquiry, then no action on his part would be required, and the addition of the language of the statute would add no greater burden to him than was already embraced in the petition, and of consequence be harmless.

Appellant went to the house of his uncle Monroe McGraw, on the afternoon of September 17, 1919, and insists that while he was asleep at his uncle's during the night Paul Short took his car, without his knowledge or consent, and carried the same to Dora, where it was seized the following morning, together with about eight gallons of corn whisky. Appellant had previously been in the taxi business, and Paul Short was so engaged at the time. There was evidence tending to show they had frequently exchanged use of cars; that these two slept together at McGraw's the night of September 17th, and that during the night Short took the car which was in front...