Sears, Roebuck & Co. v. Hamm, 6 Div. 771

• Decision Date: 09 August 1955
• Docket Number: 6 Div. 771
• Citation: 38 Ala.App. 258,81 So.2d 915
• Court: Alabama Court of Appeals
• Parties: SEARS, ROEBUCK & CO. v. Evelyn HAMM.

Page 915

81 So.2d 915

38 Ala.App. 258

SEARS, ROEBUCK & CO. v. Evelyn HAMM.

6 Div. 771.

Court of Appeals of Alabama.

Aug. 9, 1955.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

A. W. Jones, Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellee.

PRICE, Judge.

On January 3, 1951, plaintiff, while a pedestrian on a public street in Birmingham, Alabama, was struck and injured by a motor truck which she alleges was being operated by an agent, servant or employee of the defendant, acting within the line and scope of his employment.

Plaintiff's cause of action is stated in two counts, count 1 charging simple negligence, and count 2 charging wilful and wanton conduct. A demurrer to the complaint, and to each count separately and severally, was overruled and the cause was submitted to the jury on both counts of the complaint and defendant's plea in short by consent, with leave to give in evidence any matter which if specially pleaded would constitute a good defense.

From a verdict and judgment for plaintiff in the sum of $1,000 the defendant appeals.

The defendant's insistence is that there was no evidence to justify the submission of the case to the jury, in that the plaintiff failed to prove that an agent, servant or employee injured her. The further contention is that the affirmative charge should have been given as to count 1 on account of the contributory negligence of the plaintiff.

The undisputed facts are: At approximately 5:15 P.M. on January 3, 1951, during a hard rain, plaintiff was proceeding, under the proper traffic light, from the northwest corner to the southwest corner of the intersection of 17th Street and Second Avenue North. A motor truck, proceeding South on 17th Street at a rapid rate of speed, made a right turn into Second Avenue. In passing, the right side of the truck struck plaintiff, causing the injuries of which she now complains. The truck did not stop and the driver was never identified.

Plaintiff introduced the testimony of two eye-witnesses to the accident. This was the only evidence introduced by plaintiff tending to establish defendant's control of the vehicle.

Witness Wallace Gammon testified that the motor truck involved was 'a good sized truck and had a top on it;' that it was light brown in color with the word 'Sears' painted on the side in dark lettering; that the truck looked like a Sears, Roebuck & Company truck and was proceeding in the general direction of that company's place of business a block away. This witness did not see the operator of the truck.

Witness Patrick J. Shanehan, testifying for plaintiff on rebuttal, stated that the word 'Sears' was painted on the side of the truck which injured plaintiff.

Plaintiff's testimony was that she did not see the truck either before or after it struck her.

Witnesses for defendant testified that the defendant at the time of the accident operated in the City of Birmingham seven two-ton vans and two one-half ton panel trucks; that title to these trucks was in the Dixie Drive-It-Yourself System; that Sears Roebuck & Company operated these trucks under a lease from the Dixie Drive-It-Yourself System; that the trucks were garaged at night and serviced by the lessor; that employees of the defendant checked the trucks out in the morning for use in defendant's business and checked them back in when the need for the trucks had expired; that these were the only trucks operated by defendant in the City of Birmingham; that defendant's name was painted on the side of the trucks.

The testimony proving title to the trucks in Dixie Drive-It-Yourself System, rather than in the defendant, was uncontradicted.

There was no evidence that license plates on the trucks were issued in defendant's name.

The rule is well established in this State that in an action for personal injuries resulting from the operation of a motor vehicle, proof of the defendant's ownership of the vehicle raises an administrative presumption that it was, at the time of the injury, operated by the defendant's agent, acting within the line and scope of his employment. Rogers v. Hughes, 252 Ala. 72, 39 So.2d 578; Thompson v. Curry, 36 Ala.App. 334, 56 So.2d 359. The same presumption arises upon a showing that the license plate on the motor vehicle was issued to the defendant. Ford v. Hankins, 209 Ala. 202, 96 So. 349; Shipp v. Davis, 25 Ala.App. 104, 141 So. 366; Cox v. Roberts, 248 Ala. 372, 27 So.2d 617.

Although we have not been cited to nor have we found a decision rendered by the courts of this State expressly holding that an administrative presumption of ownership and control by the defendant is raised by evidence showing that a motor vehicle bears the defendant's name, such appears to be the majority view in this country, and recent decisions of our Supreme Court apparently recognize the existence of such a presumption. Hancock v. Liggett & Myers Tobacco Co., 253 Ala. 63, 42 So.2d 632; Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So.2d 464; Harrington v. Evans, 99 Cal.App.2d 269, 221 P.2d 696; Florida Motor Lines v. Millian, 157 Fla. 21, 24 So.2d 710; Robeson v. Greyhound Lines, Inc., 257 Ill.App. 278; Bosco v. Boston Store of Chicago, 195 Ill.App. 133; Karte v. J. R. Brockman Mfg. Co., Mo., 247 S.W. 417; Myers v. McMaken, 133 Neb. 524, 276 N.W. 167; Kelley v. Hicks, 9 N.J.Super. 266, 76 A.2d 23; Lawson v. Wells Fargo & Co., Sup., 113 N.Y.S. 647; Lindenmuth v. Steffy, 173 Pa.Super. 509, 98 A.2d 242; Fullerton v. Motor Express, 375 Pa. 173, 100 A.2d 73; Kirk v. Harrington, Tex.Civ.App., 255 S.W.2d 557; Walker v. Johnston, Tex.Civ.App., 236 S.W.2d 534; Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6; Howell v. J. Mandelbaum & Sons, 160 Iowa 119, 140 N.W. 397; 98 Blash.Auto. #6056; Wigmore on Evidence, Sec. 150a.

As to the character and effect of administrative presumptions, the Supreme Court held in Tullis v. Blue, 216 Ala. 577, 114 So. 185, 187: 'They are not in themselves evidence, and in practice their effect is merely to impose upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment.'

Where the rebutting evidence is clear, undisputed and conclusive that the operator of the vehicle was not the agent of defendant or was not acting within the line and scope of his authority, the defendant is entitled to the general affirmative charge with hypothesis. Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; Tullis v. Blue, 216 Ala. 577, 144 So. 185; McCormack Bros. Motor Car Co. v. Holland, 218 Ala. 200, 118 So. 387; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6; Craft v. Koonce, 237 Ala. 552, 187 So. 730; Bell v. Martin, 241 Ala. 182, 1 So.2d 906.

If, however, the rebutting evidence of defendant is 'weighted by circumstances tending to bring it into suspicion and doubt or is of such a character as to support a reasonable inference that the car was being operated in the owner's business or for his pleasure or benefit, the general affirmative charge with hypothesis should not be given at the request of the defendant.' Cox v. Roberts, 248 Ala. 372, 27 So.2d 617, 619; Rogers v. Hughes, 252 Ala. 72, 39 So.2d 578; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Grimes v. Fulmer, 235 Ala. 645, 180 So. 321; Chandler v. Owens, 235 Ala. 356, 179 So. 256.

Defendant's contention is that any presumption of agency arising from a showing that defendant's name is on the truck is wholly dependent upon Sears Roebuck and Company owning the truck; that where it is clearly and conclusively shown that a third party has legal title to all trucks operated by defendant in the City of Birmingham, the presumption of agency must fall and defendant becomes entitled to the affirmative charge unless the plaintiff goes forward with affirmative evidence tending to prove agency and operation within the line and scope of employment, and relies on the cases of Stevens v. Deaton Truck Lines, 256 Ala. 229, 54 So.2d 464; Venuto v. Robinson, 3 Cir., 118 F.2d 679, 681, and Constitution Publishing Co. v. Dale, 5 Cir., 164 F.2d 210, as authority for such contention.

In Stevens v. Deaton Truck Lines, supra [256 Ala. 229, 54 So.2d 470], the Truck Lines leased from one Roberts a truck tractor and trailer. The lease provided that the truck lines would have exclusive control of the tractor and trailer. The ownerlessor was to operate the vehicle in the business of the lessee truck lines. It was further provided that the lessee would buy all license and identification tags and that the truck would bear the lessee's name until the expiration of the lease. The evidence tended to show that while Roberts was on the business of the truck lines a relationship of master and servant existed. It further showed that while the lease provided for exclusive control in the lessee, the owner-lessor was allowed to use the truck for his own personal business and while so operating the tractor bearing the truck lines sign, Roberts injured the plaintiff Stevens. The Supreme Court, in an opinion by Justice Lawson, affirmed the trial court's action in giving the affirmative charge for Deaton Truck Lines in a suit joining Roberts and Deaton Truck Lines as co-defendants. The holding in this case was based primarily on the ground that Roberts, at the time of the injury, was not operating the truck tractor in the line and scope of his employment with the truck lines, but was on a purely personal mission. However, as to the presumption arising from proof that Deaton's name was on the truck, the court said:

'Any evidential value from the fact that Deaton's name was on the vehicle was removed by the concession that the vehicle was at...