Penticost v. Massey

• Decision Date: 15 November 1917
• Docket Number: 6 Div. 475
• Citation: 77 So. 675,201 Ala. 261
• Parties: PENTICOST v. MASSEY.
• Court: Alabama Supreme Court

77 So. 675

201 Ala. 261

PENTICOST v. MASSEY.

6 Div. 475

Supreme Court of Alabama

November 15, 1917

On Rehearing, Jan. 24, 1918

Appeal from City Court of Birmingham; Robert N. Bell, Special Judge.

Suit by S. Penticost, as administrator, against Richard W. Massey. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Suit by appellant as administrator, against appellee, to recover damages for the death of his girl, eight years old, who was run over and killed by an automobile on a public highway in the city of Birmingham, in front of an apartment house known as Terrace Court, located at the intersection of Highland avenue and Twentieth street. At the conclusion of the evidence for plaintiff, defendant offered testimony, and when the case was closed, the court gave at the request of defendant the general affirmative charge, and instructed the jury orally to find for the defendant. Counsel for the defendant handed to the jury the verdict already written out which was signed by one of the members as foreman, while the jury remained in the box; the court instructing said verdict to be signed. From the judgment for the defendant plaintiff prosecutes this appeal.

The evidence for plaintiff tended to show the following: The child of the plaintiff was run over and killed by an automobile December 19, 1913, at Terrace Court on Highland avenue in the city of Birmingham. Highland avenue seems also to be known as Twelfth avenue. Twentieth street runs north and south, and Twelfth avenue runs east and west. Terrace Court is on the northwest corner. The car that struck plaintiff's child was going west on Twelfth avenue, and was a large car known as a limousine. The child was next to the curbing next to Terrace Court, and was struck by the front part of the car near the right-hand side, and her neck was broken. When plaintiff, the father of the child, reached her, she was lying two or three feet from the sidewalk, and never regained consciousness. The child was at the time in the act of crossing from Terrace Court going over Twelfth avenue. The witnesses for plaintiff testified that they saw but one person in the car; that was the chauffeur, who was a white man. Some of the witnesses identified the chauffeur as one Herbert Young. Some of plaintiff's testimony further tended to show that the car was defendant's car, and that Herbert Young was his chauffeur. They further testified that the car was running across Twentieth street, going west on Twelfth avenue at a high rate of speed, estimated by some as 35 miles per hour, and that after the child was struck the car made no stop, but continued down Twelfth avenue going west.

The accident occurred, according to the estimate of several witnesses, some time between 6 and 7 o'clock in the afternoon, or at a time as estimated to be about dark, or getting dark.

The home of defendant is south of Highland avenue on Beech street, which is three blocks east of Highland avenue. Some of the witnesses testified that defendant lived about five blocks east of Twentieth street on Beech street. The evidence for plaintiff further tended to show that the intersection of these streets was well lighted, and that the machine gave no signal, and sounded no alarm of any kind; that Herbert Young was working for Mr. Massey, the defendant; and that defendant had been seen riding in this car numbers of times, and had given orders to Herbert Young in regard to the car, and also had seen defendant give Herbert Young money, or pay him as his chauffeur for working for him. The car was run and used by defendant and his family, Herbert Young had been seen working on the car at the house of defendant, and that defendant had been seen present at the time giving directions, or saying something about the car.

The evidence for the defendant tended to show that the car was the property of his wife, it having been an anniversary gift that it was operated by Herbert Young as the chauffeur, but that the chauffeur was employed by his wife. The evidence for defendant, however, tended to show that there were three cars at defendant's house, that Herbert Young drove all three of them, and that he obeyed defendant's orders; that it was his business to do what defendant instructed him to do that defendant often rode in this car; that Herbert Young drove it when defendant rode in it; that Herbert Young took orders from defendant, the latter ordering him where to go and where to carry him, and the chauffeur drove defendant's family, his wife and children, about. While the evidence for defendant tended to show that the defendant's wife paid the chauffeur his wages, yet it also shows that defendant gave to his wife a regular allowance for the purpose of paying the servants.

At the time of the accident, the defendant and his wife were in New York, and there were at his house his two daughters, and his mother-in-law; that on the afternoon of the accident the young lady daughters of defendant had been downtown in this car, Herbert Young being the chauffeur. They testified that they had been home a short while when they heard of the accident, and their evidence tended to show that the car did not leave the house until about 8 o'clock that night, when they had use for the same; that Herbert Young had not been sent downtown or in the direction of Terrace Court for any purpose; that in coming home from town they did not pass by Terrace Court, but came a street one block below; that in coming from town to their home they would be traveling east, while the car that struck the child was going west. The evidence further tended to show that the place known as Terrace Court was owned by the defendant, or that he was largely interested therein.

One Chestnut worked at Terrace Court, and he often went to defendant's house to do anything needed about the car, or about the premises, and the chauffeur Herbert Young frequently went to Terrace Court to get different things needed, or would go after the man at Terrace Court who was in the habit of fixing things around the house; when they wanted Mr. Chestnut to do anything they would send Herbert Young down after him.

The witnesses for defendant consisted of his two daughters, his mother-in-law, and himself. The chauffeur, Herbert Young, did not testify in the cause, and none of the witnesses for the defendant stated whether or not they knew of his whereabouts, or offered any explanation of his absence.

When the defendant left for New York, he did not give Herbert Young any specific directions as to what he should do with the car--not having had any conversation with him in regard to the same--and could not say whether he had ever given him any directions not to use the car for his private purposes or for any one else.

Upon the conclusion of all the evidence in the case, the bill of exceptions discloses the following to have occurred:

"Thereupon the defendant did ask the court in writing to give the following written charge: 'Gentlemen of the jury, if you believe the evidence in the case, you will find a verdict for the defendant.' Upon said charge the court did indorse upon same the word, 'Given,' and signed its name, and delivered the written charge to defendant's counsel to be read to the jury, to which action of the court in giving said charge the plaintiff did then and there duly except.

"The court then charged the jury, 'Gentlemen, I am going to instruct you to find a verdict for the defendant for want of proof,' to which action of the court the plaintiff did then and there duly except. Thereupon defendant's counsel in open court read to the jury the written charge above referred to, and handed to the jury a verdict already written out, reading as follows, 'We, the jury, find for the defendant, ______, Foreman.'

"The jury then and there impaneled in the box was instructed by the court to sign said verdict, by one of its members as foreman, to which action of the court the plaintiff did then and there duly except."

Bondurant & Smith, of Birmingham, for appellant.

Stokely, Scrivner & Dominick, of Birmingham, for appellee.

GARDNER J.

The foregoing statement of the case sufficiently discloses the tendency of the evidence for the respective parties, and a general outline of the questions here presented for review. It is quite clear, of course, that the evidence for the plaintiff sufficiently identifies the car which struck his child as that used by the family of defendant, and that it was in charge of the chauffeur who had for some time been operating the same, for submission of that question to the jury for determination. Liability is sought to be fastened upon the defendant upon the principle of respondeat superior, and the two important questions in all cases of this character are: First, the existence of contractual relation of master and servant, or principal and agent; and, second, whether the act or omission, which is the basis of this particular proceeding, was one performed within the scope of the employment. Babbitt on the Law Applied to Motor Vehicles, § 547.

It is insisted by counsel for appellee that the action of the lower court was justified because of the fact that the evidence was without dispute that the defendant's wife was the owner of the car and that she alone employed and paid the chauffeur....