Redmond v. Self
| Decision Date | 01 November 1956 |
| Docket Number | 6 Div. 724 |
| Citation | 90 So.2d 238,265 Ala. 155 |
| Parties | C. Bryan REDMOND, d/b/a Redmond Motors, v. Ruby SELF. |
| Court | Alabama Supreme Court |
The complaint upon which the case was tried is as follows:
Count A As Amended
Plaintiff claims of the defendant the sum of $3,000 as damages for that on, to wit, May 10, 1952, she was a passenger in an automobile that was being operated by her husband, W. W. Self, upon a public street or avenue in the city of Birmingham, Jefferson County, Alabama, at, to wit, First Avenue and 26th Street, North. Plaintiff avers that at said time and place one Terrell G. Mills, while intoxicated from drinking intoxicating liquors or beverages, negligently drove an automobile owned by the defendant, into the automobile in which the plaintiff was a passenger and as a proximate consequence thereof injured and damaged the plaintiff as follows: Plaintiff suffered great physical pain and mental anguish. Plaintiff suffered a concussion of the brain; she was rendered unconscious; she was bruised and contused on and about her body; she was caused to suffer severe headaches; her leg was cut, bruised and lacerated; she was caused to lose a long period of time from her housework; she was caused to be made nervous and frightened, and was made sore. Plaintiff further avers that her said injuries and damage were proximately caused by the negligent operation of the said automobile which was owned by the defendant, C. Bryan Redmond, doing business as Redmond Motors, the same being operated at said time and place by the said Terrell G. Mills. Plaintiff further avers that the said Terrell G. Mills at said time and place aforesaid averred, was an incompetent driver, in that he was addicted to the use of intoxicating liquors or beverages, which fact was known to and by the defendant, C. Bryan Redmond, doing business as Redmond Motors, on and prior to May 10, 1952. Plaintiff further avers that, after said knowledge or notice by the defendant, C. Bryan Redmond, doing business as Redmond Motors, that the said Terrell G. Mills was an incompetent driver as aforesaid, and was addicted to the use of intoxicating liquors or beverages, the said defendant, C. Bryan Redmond, doing business as Redmond Motors, negligently entrusted his said automobile to the said Terrell G. Mills, allowing him to drive same on May 10, 1952, and that plaintiff's injuries and damages were proximately caused by the negligence of the said C. Bryan Redmond, doing business as Redmond Motors, in negligently entrusting said automobile to the said Terrell G. Mills and allowing the said Terrell G. Mills, who was then and there an incompetent driver and addicted to the use of intoxicating liquors or beverages, to drive same on May 10, 1952.
Bowers, Dixon, Dunn & McDowell and Evans Dunn, Birmingham, for appellant.
Gibson, Hewitt & Gibson, Birmingham, for appellee.
This appeal is from a judgment rendered in an action against appellant, C. Bryan Redmond, doing business as Redmond Motors, hereafter referred to sometimes as Redmond, to recover damages for personal injuries sustained by appellee when the car in which she was riding was hit by a car belonging to Redmond which was being driven by one Terrell G. Mills.
The cause went to the jury on appellee's Count A as amended, which the reporter will set out in the statement of the case, and on Redmond's plea of the general issue in short by consent in the usual form. There was jury verdict in favor of appellee in the amount of $2,000. Judgment was in accord with the verdict. Redmond's motion for new trial being overruled, he perfected this appeal.
The only errors assigned are to the effect that the trial court erred (1) in refusing to give the general affirmative charge with hypothesis in favor of appellant, the defendant below, and (2) in overruling appellant's motion for a new trial.
In considering the propriety of the affirmative charge in this case, we must review the tendencies of the evidence in the light most favorable to the plaintiff below, the appellee here, and must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more proper. Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633; Wilson & Co. v. Clark, 259 Ala. 619, 67 So.2d 898; Duke v. Gaines, 224 Ala. 519, 140 So. 600.
The evidence establishes without any contradiction in the testimony relative thereto facts summarized as follows: The appellant on May 10, 1952, was engaged in the business of selling new and used automobiles in the city of Knoxville, Tennessee, and on said date had in his employment as a car salesman the said Terrell G. Mills, who was originally a defendant in this cause but was removed as a party defendant by the plaintiff below apparently because of lack of service. Shortly after 9:00 on the morning of May 10, 1952, Mills drove a 1951 Studebaker belonging to Redmond away from the latter's used car lot situate in the city of Knoxville, Tennessee. Neither Redmond nor the used car manager was aware of this action on the part of Mills, although a fellow employee saw him leaving. Mills drove the Studebaker to Birmingham, Alabama, where at about 2:30 on the afternoon of the same day he drove the car into the rear of a car which was occupied by the appellee, Mrs. Ruby Self, who was sitting on the front seat along with the driver, her husband, who was the owner of that car. At the time of the impact the Self automobile had stopped in compliance with a traffic signal at an intersection of two streets in the city of Birmingham. At the time of the collision Mills was under the influence of an intoxicating liquor or beverage. Mrs. Self was rather severely injured as a result of the collision of the two automobiles, but it is not necessary to make specific reference to the nature of her injuries, inasmuch as no question is raised as to the amount of the damages.
The evidence summarized above establishes beyond peradventure that the injuries sustained by Mrs. Self were a proximate consequence of the negligence of Mills. But it is equally well established that at the time of the collision Mills was not acting within the line and scope of his employment and for that matter, the plaintiff's theory of liability is not based on the doctrine of respondeat superior.
The theory on which recovery was sought is that the appellant, Redmond, negligently entrusted the automobile to Mills, an incompetent driver who was addicted...
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