Martin v. Burgess

• Decision Date: 20 March 1936
• Docket Number: No. 7938.,7938.
• Citation: 82 F.2d 321
• Parties: MARTIN v. BURGESS.
• Court: U.S. Court of Appeals — Fifth Circuit

82 F.2d 321 (1936)

MARTIN v. BURGESS.^*

No. 7938.

Circuit Court of Appeals, Fifth Circuit.

March 20, 1936.

S. C. Mize, of Gulfport, Miss., and Harry H. Smith, of Mobile, Ala., for appellant.

Jesse F. Hogan, of Mobile, Ala., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Cyrille E. Burgess recovered judgment for personal injuries against Peter F. Martin. The main error urged on this appeal is the refusal of the judge to instruct a verdict for the defendant, and the crucial question is whether the evidence authorizes a finding that the truck of defendant which injured the plaintiff was at the time operated by a servant of defendant in the course of his employment. The evidence for the plaintiff showed an injury by the negligence of the driver of a truck belonging to the defendant in a collision with plaintiff's automobile near Mobile, Ala., early on Sunday morning; and that a few hours after the occurrence, while the driver was still unconscious in the hospital at Mobile, defendant came on a summons by telephone to the hospital, where plaintiff also lay seriously wounded, and asked the plaintiff if he had insurance, and upon a negative answer, said he himself had insurance, that plaintiff did not have to worry about anything, and that his automobile would be fixed. The superintendent of the hospital testified that defendant on the same visit told her that if the insurance company did not pay the hospital expenses he would be responsible for them; and the surgeon testified that the defendant said to him that he thought he was responsible for the doctor's bill, although he had not authorized the man to come to Mobile in his truck, and he would see that the bill was paid. The driver of plaintiff's automobile testified that he heard defendant say on the same occasion: "The boys were supposed to come to Biloxi Monday morning with the truck." The defendant admitted making all the statements save the last, which he denied. He and the driver both testified that on Friday evening before the collision Sunday morning the driver was engaged by defendant to begin work on Monday morning at selling and delivering beer by means of the truck in Jones and Forrest counties, Miss., and that the truck loaded with beer was then turned over to the driver. Defendant testified he gave no permission to use the truck otherwise or outside of those counties, and knew nothing of the trip to Mobile until summoned there after the collision; that the truck was not to come to Biloxi on Monday; that the driver had a week's supply of beer with the truck and other beer was to come direct from Louisville. The driver testified clearly and positively and without contradiction that he stored part of the beer from the truck on Friday evening at Hattiesburg, in Forrest county, and took the remainder to Laurel, in Jones county (which adjoins to the north), and put it in cold storage there. Saturday he worked for another man at Laurel until midnight. Early Sunday morning he started in the truck to Mobile in Alabama to take a trunk of clothes to his wife who was at her mother's house there, intending to return to Laurel the same day; that his instructions were to take orders and deliver beer in Forrest and Jones counties, and he had no permission to carry the trunk to Alabama; that defendant had no interest in the trip, and so far as he knew, did not know of it. The trunk was found in the wrecked truck. It was proven that the usual and direct route from Laurel to Biloxi was south about 115 miles; the route to Mobile was southeast about 115 miles, and Mobile is 75 or 80 miles east of Biloxi.

In Alabama proof that the truck was defendant's raises an administrative presumption that its use was authorized at the time and place of the collision, so as to put the burden of explanation on the defendant; but the presumption is not evidence, and serves only to impose upon the defendant the burden of showing that the driver was not his agent, or, if he was, that he was not acting within the scope of his authority or in the course of his employment, Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; and the proof ought to be clear and convincing, Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16. But when it is shown without contradiction that the defendant's vehicle was used without his authority at the time and place, a verdict against him cannot stand. Toranto v. Hattaway, supra; Ætna Explosives Co. v. Shaeffer, 209 Ala. 77, 95 So. 351. Turning to the so-called admissions as a support for plaintiff's recovery, it is to be remembered that only admissions of fact are really evidence. If the admission is not of a fact, but of an opinion or of law, it is of no more value than if a witness were offering to testify to the same thing. Polk v. Robertson, 19 Fed. Cas. page...