Kelly v. Hanwick, 1 Div. 778.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, Justice.
• Citation: 228 Ala. 336,153 So. 269
• Parties: KELLY v. HANWICK.
• Docket Number: 1 Div. 778.
• Decision Date: 25 January 1934

153 So. 269

228 Ala. 336

KELLY v. HANWICK.

1 Div. 778.

Supreme Court of Alabama

January 25, 1934

Rehearing Denied March 22, 1934.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action for damages for personal injuries by Marguerite Hanwick against Margaret Kelly, individually and as administratrix of the estate of Edward A. Kelly, deceased. From a judgment for plaintiff, defendant appeals.

Affirmed.

Charge that, while wife's ownership of automobile was insufficient to make her responsible for husband's negligent driving, wife's authorization of husband to drive automobile in which she was riding was sufficient to make her responsible, held not improper, as taking from jury question of negligence.

The following charges were refused to defendant:

"11. I charge you, gentlemen of the jury, that if you believe from evidence in this case that the plaintiff was injured by reason of an unavoidable accident then you must find for the defendant."

"12. I charge you, gentlemen of the jury, that if a person is riding in an automobile with another person driving, and the person driving is guilty of negligence in the manner of the operation of said automobile, and the person riding in said car realizes and appreciates the danger of the manner in which the car is being driven, and has an opportunity to caution the driver of the automobile, and fails to do so, then that person is guilty of negligence, and if such negligence contributes to her injuries, then that person cannot recover damages from the driver or from the driver's employer or master."

"20. I charge you, gentlemen of the jury, that the mere facts that Edward Kelly and the Defendant were going on a pleasure trip together in the car of the Defendant at the time of the accident, and that Mr. Kelly was driving, and that Mrs. Kelly was present in the car would not of themselves be sufficient to show that Mr. Kelly was driving the car as the agent of Mrs. Kelly."

"21. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that the Plaintiff was aware of the speed of the automobile in which she was riding at the time of the accident, and was aware that it was going too fast on that piece of road, and that she had time to appreciate the danger of such fast driving, and reasonable time to warn the driver of the car, and if you further believe from the evidence that a reasonably prudent person would have warned the driver of the automobile that he was driving too fast under the circumstances, and that she failed to so warn the driver, and that such failure on her part proximately contributed to her injuries then she cannot recover."

"22. I charge you, gentlemen of the jury, that if you believe from the evidence in this case that the Plaintiff was familiar with the road over which they were riding on the night of the accident, and that a reasonably prudent person having due regard for his own safety would not have driven as fast under the circumstances as the said Edward Kelly was driving immediately preceding the accident, and that a reasonably prudent person would have observed such speed, and would have warned the said Edward Kelly, and if you further believe that the Plaintiff failed to warn the said Edward Kelly, and that this failure proximately contributed to her injuries, then you must find for the Defendant."

"23. I charge you, gentlemen of the jury, that a passenger in an automobile, even though such passenger is a guest, cannot sit silent in such automobile and allow the driver thereof to operate said car recklessly, and recover for injuries that such passenger received in an accident as a result of such reckless driving on the part of the driver, provided such passenger has a reasonable opportunity to warn such driver and provided such passenger has knowledge of the recklessness of the driving or should have such knowledge by the exercise of reasonable prudence."

These charges were given at defendant's request:

"(B) The Court charges the jury that if you are reasonably satisfied from the evidence that the allegations of the pleas of contributory negligence are true, you should find a verdict for the Defendant."

"6. I charge you, gentlemen of the jury that the Plaintiff cannot recover in this case unless you are reasonably satisfied from the evidence that the driver of the automobile causing the injuries complained of was negligent at the time of the accident, and that said negligence was the proximate cause of the Plaintiff's injuries, and unless you are further reasonably satisfied from the evidence that said driver was acting as an agent for the Defendant in driving said automobile."

"10. I charge you, gentlemen of the jury, that if you believe from the evidence in this case that the Plaintiff's injuries were proximately caused by her own negligence or that her own negligence contributed to her injuries, then you must find for the defendant."

"19. I charge you, gentlemen of the jury, that the burden of proof throughout the case is upon the Plaintiff to reasonably satisfy you from the evidence that Edward Kelly was negligent in the driving of the automobile at the time of the accident, and that the Plaintiff was injured as a proximate result of said negligence, and that said Edward Kelly occupied the relationship of agent, or servant, to the Defendant before the Plaintiff is entitled to recover."

Smith & Johnston, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

THOMAS Justice.

The suit was for damages sustained by plaintiff caused by defendant's automobile, driven by her husband, being overturned, injuring plaintiff who was riding in that car.

At the written request of the plaintiff, the trial court gave the general affirmative instructions in her favor on the question of the agency of the driver of the car-as being that for the defendant. It is insisted, on authority, that the mere relation, or family purpose (alone), is not recognized as creating that agency on which liability may rest-as the relation of master and servant within the rule of respondeat superior. Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87; Armstrong v. Sellers, 182 Ala. 582, 62 So. 28; Erlich v. Heis, 193 Ala. 669, 69 So. 530; Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L. R. A. 1917F, 380; Feore v. Trammel, 213 Ala. 293, 104 So. 808; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 64 A. L. R. pp. 839, 848, note.

In the case of Hudgens v. Boles, 208 Ala. 67, 68, 93 So. 694, Mr. Justice Sayre for the court said: "On the occasion in question the son was driving the car for himself and his elder sister, though, as he testified, the trip was 'mostly his.' The court has thought the decision in Erlich v. Heis was not in conflict with the rulings in Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87, and Armstrong v. Sellers, 182 Ala. 582, 62 So. 28, later followed in Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L. R. A. 1917F, 380, and, if it is not, this case was properly submitted to the jury."

And the case of Bradley v. Ashworth, 211 Ala. 395, 396, 100 So. 663, 664, contains the following: "It is suggested on behalf of appellee that this case is determined by the decision in Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87. Appellants, on the other hand, ask the court to adopt the 'family purpose' doctrine, and thus, in effect, to overrule Parker v. Wilson. There are cases in which it is held that, where the head of a family keeps an automobile for the use and pleasure of his family-and we suppose that, among people of moderate means at least, most automobiles are so intended and kept-the owner is liable for negligence in its operation. The author of 'The Law Applied to Motor Vehicles,' Babbitt (3d Ed.) § 1178, observes that 'this doctrine has strong reasons of convenience and public policy to recommend it, but no basis whatever in the law of agency'-as we held in Parker v. Wilson-'and according to the great weight of authority in this country the owner is not liable on evidence merely that the owner permitted his minor son to operate his car for his own pleasure as it is held that this does not show that the son was the agent of the father acting in the scope of his employment.' Like considerations apply, of course, in the case of other members of the owner's family. The cases so holding, including Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L. R. A. 1917F, 380; Armstrong v. Sellers, 182 Ala. 582, 62 So. 28; Powers v. Williamson, 189 Ala. 600, 66 So. 585; are collected in the footnote. * * * In Erlich v. Heis, 193 Ala. 669, 69 So. 530, and Hudgens v. Boles, 208 Ala. 67, 93 So. 694, the authority of Parker v. Wilson was conceded." Tullis v. Blue, 216 Ala. 577, 114 So. 185.

There is a rule, or the application of the rule of liability, that should be observed before testing the giving of this charge by the evidence before us. It is that stated in Thomas v. Carter, 218 Ala. 55, 58, 117 So. 634, 635, where the facts were:

"Defendant was driving his automobile from Gadsden to Montgomery. Jewel Thomas was his guest. Plaintiff had occasion to be in Montgomery, and, upon the invitation of defendant and Jewel Thomas, her daughter, went with them. At Calera, defendant said he was tired, and, on Jewel's suggestion, allowed her to drive the car. While she was driving, the car overturned, causing injuries to plaintiff. On her complaint, charging negligence to 'the defendant, who was the owner of said automobile, or the driver of said automobile, who was operating same under the authority of, and with the consent of, defendant,' plaintiff had a verdict for damages. * *

...