Perdue v. Mitchell

Decision Date27 July 1979
Citation373 So.2d 650
PartiesTillman A. PERDUE, Jr., et al. v. Robert B. MITCHELL, Jr., et al. 78-568.
CourtAlabama Supreme Court

Von G. Memory, Montgomery, for appellants.

Tabor R. Novak, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee Eloise Smith.

SHORES, Justice.

This is a suit for injuries allegedly arising from the negligent operation of an automobile. Defendant Mitchell, the operator of the car, was served but failed to appear at trial; and the court entered a default judgment against him in the amount of $10,000. That judgment is not contested on appeal. At the close of testimony, the trial court entered a directed verdict in favor of the owner of the car, defendant/Mrs. Eloise Smith. The plaintiffs appealed and argue that two rulings require reversal:

1) The trial court's refusal to grant a continuance in order to obtain the presence of Mitchell constitutes an abuse of its discretion; and

2) The trial court's granting Mrs. Smith's motion for a directed verdict.

The accident involved occurred when Mrs. Smith's automobile, driven by Mitchell, made a left turn in front of a van owned and operated by plaintiffs, Tillman and Patricia Perdue. Mrs. Smith was not in the car at the time of the collision. Plaintiffs base their claim against her on two theories: 1) Vicarious liability and 2) negligent entrustment.

The record shows that Mrs. Smith is elderly and infirm and depends on friends and relatives to chauffeur her about. On the day of the accident, she arranged for defendant Mitchell, a seventeen-year-old boy, to drive her to her brother's house in Coldwater, Alabama, where she intended to preserve peaches. Before leaving Montgomery, Mrs. Smith and the Mitchell boy stopped at the farmers' market where Mrs. Smith was to buy the peaches. While she was inside the market, Mitchell drove off in the car and collided with plaintiffs' van. Mrs. Smith was left stranded at the farmers' market and, after trying to locate her car for two hours, she got a ride home. She testified that she attempted to have the Mitchell boy arrested but was told by the police that she would have to report it to the juvenile authorities. She testified that she did so. She learned of the accident during the afternoon. Her automobile was a total loss. Plaintiffs contend that Mitchell had permission to use Mrs. Smith's car at the time of the accident and was, therefore, acting as her agent.

On the morning of trial, plaintiffs moved for a continuance because Mitchell had not appeared in court. Plaintiffs argued that Mitchell's testimony was necessary to prove the case against Mrs. Smith. The motion was denied.

Continuances are not favored and the trial court's denial of a motion for continuance will be upset only when palpable or gross abuse of discretion is shown. Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960). It is not an abuse of discretion to overrule a motion for continuance because of the absence of a witness where plaintiff fails to show due diligence by taking a deposition or procuring compulsory process. Knowles v. Blue, 209 Ala. 27, 95 So. 481 (1923). To warrant a continuance because of the absence of a witness:

". . . it must be shown (1) that the expected evidence will be material and competent; (2) a probability that the testimony can be obtained at a future date to which the cause may be continued or postponed; (3) due diligence having been exercised by the movant to secure the absent witness or evidence; (4) the expected evidence must be credible and will probably affect the result; (5) the evidence must not be merely cumulative or impeaching; (6) that the motion for continuance is not made merely for purposes of delay. . . ." Ex parte Driver, 258 Ala. 233, 237, 62 So.2d 241, 243 (1952).

Huskey v. W. B. Goodwyn Co., Inc., 295 Ala. 1, 321 So.2d 645 (1975), the sole case cited by plaintiffs in support of their contention that the trial court abused its discretion, does not support their position. That case deals with the propriety of allowing amendments to a complaint following entry of a pre-trial order. After addressing that issue, the court suggested by way of dictum that, as a result of its ruling, the parties might wish to request a continuance, and that such a request should be granted since ". . . a continuance before the beginning of trial does not, in the usual case, unduly delay litigation, and should be granted whenever it is necessary to achieve a just determination on the merits." (295 Ala. at 8, 321 So.2d at 649) This statement does not conflict with the above-stated formulations of the limits on a trial court's discretion.

Although counsel for the plaintiffs had a subpoena served on Mitchell, and telephoned his home, he made no effort to take Mitchell's deposition. He stated that he believed Mitchell to have fled the state to avoid trial, but offered no assurance that he could be located or brought to trial at a later date. Mrs. Smith was present and ready for trial. Given these circumstances, and Mrs. Smith's age and infirmity, it was not an abuse of discretion to deny the motion for a continuance. Plaintiffs made no effort to secure Mitchell's testimony; nor did they show a probability that his testimony could be obtained at a later date.

Because no evidence whatever was presented on the issue of negligent entrustment, we are concerned here solely with the issue of vicarious liability.

A directed verdict is proper in two circumstances:

". . . First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense, and second, where there are not any controverted issues of fact upon which reasonable men could...

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    • United States
    • U.S. District Court — Southern District of Alabama
    • April 21, 2020 based on speculation and conjecture, then, in that event, the claim should not be submitted to the jury." Id. (citing Perdue v. Mitchell, 373 So. 2d 650 (Ala. 1979); Whaley v. Lawing, 352 So. 2d 1090 (Ala. 1977); Commercial Fire Ins. Co. of N.Y. v. Parvin, 189 So. 2d 330 (1966)). As an i......
  • Pryor v. Brown & Root USA, Inc.
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    • September 15, 1995
    ...scope of his employment, and happened while he was in the accomplishment of objectives within the line of his duties." Perdue v. Mitchell, 373 So.2d 650, 653 (Ala.1979), citing Cook v. Fullbright, 349 So.2d 23 Because Pryor's claims against Brown & Root are based on the doctrine of responde......
  • Durbin v. B.W. Capps & Son, Inc.
    • United States
    • Alabama Supreme Court
    • March 11, 1988
    ...allegation or proof of negligent entrustment, as there was in Thompson v. Havard, 285 Ala. 718, 235 So.2d 853 (1970), and Perdue v. Mitchell, 373 So.2d 650 (Ala.1979). We do not interpret Pitts v. Hulsey, 344 So.2d 175 (Ala.Civ.App.1977), as standing for the proposition that evidence of per......
  • C.O. v. Jefferson Cnty. Dep't of Human Res., 2140752
    • United States
    • Alabama Court of Civil Appeals
    • April 1, 2016
    ...when palpable or gross abuse of discretion is shown.’ " State v. Thomas, 189 So.3d 94, 96 (Ala.Civ.App.2015) (quoting Perdue v. Mitchell, 373 So.2d 650, 652 (Ala.1979) ).In support of this argument, the cites only Ex parte U.S. Bank National Ass'n, 148 So.3d 1060 (Ala.2014). We are unable t......
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