Siler v. Williford

• Decision Date: 13 October 1961
• Citation: 350 S.W.2d 704
• Parties: Thomas Scott SILER, Appellant, v. Elsie WILLIFORD, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 704

350 S.W.2d 704

Thomas Scott SILER, Appellant, v. Elsie WILLIFORD, Appellee.

Court of Appeals of Kentucky.

Oct. 13, 1961.

Robert J. Watson, Middlesboro, for appellant.

Wm. S. Tribell, Middlesboro, John James Tribell, Pineville, for appellee.

STANLEY, Commissioner.

This is an appeal from a judgment for $6,741 for personal injuries and hospital and medical expenses resulting from an automobile collision. The grounds for a reversal appear in the course of the opinion.

The plaintiff, now appellee, Mrs. Elsie Williford, an employee at the Miners Memorial Hospital in Middlesboro, went off duty about 12:30 a. m. October 5, 1959. Her husband was waiting for her at the employees' entrance to take her home. She got into the automobile driven by her husband, Hugh Williford. A two-lane curving and upgrade driveway from the hospital enters the north side of Cumberland Avenue at right angles. The night was 'medium foggy,' as one witness described it. The plaintiff testified her husband stopped the car before entering the street. They saw the headlights of a car coming from the east. 'When we drove out almost onto the highway, or it seems to me like it was, we were facing these headlights,' then there was a crash. Hugh Williford testified he saw the headlights of the approaching car and stopped before entering the street. The defendant's car 'looked to be 1,500 or 1,600 feet away and I pulled out and the crash happened.' The witness estimated the car was traveling 80 or 90 mph but qualified the estimate by saying that when he entered the avenue 'I couldn't tell then but just before we crashed I seen it was coming awfully fast and I couldn't do nothing then.'

The defendant, Siler, was a policeman driving a city cruiser car. Another officer, Eugene Harold, was with him. They testified that their car was traveling on the right side of the street 50 or 55 mph, and when they were 600 feet from the hospital entrance or exit they saw the plaintiff's car in the driveway when it was 300 feet from the avenue. It never stopped. The defendant's car was about the middle of the intersection when plaintiff's car crashed into the side of it. Both witnesses testified positively that the plaintiff's car did not stop before entering the street but came right out in front of their automobile.

We conclude the issue of the defendant's negligence was for the jury to resolve under proper instructions.

The instruction submitting the question of the defendant's negligence defined his duties in regard to exercising ordinary care, control of the machine and lookout. A paragraph stated his duty to operate the automobile in a reasonable and prudent manner, having regard for the traffic and condition of the highway, weather conditions and visibility 'and in no event in excess of 35 mph' subject to an 'unless' provision.

The appellant contends there was no evidence warranting the qualification of speed of 35 mph, hence, the inclusion of that rate in the instruction was error. The accident happened on a city street at a hospital exit. The applicable statute, KRS 189.390, declares that for an ordinary automobile any speed in excess of 35 mph in any business or residential district shall be unlawful. That part of the instruction is correct. Roberts v. Taylor, Ky., 339 S.W.2d 653.

There was no evidence whatever that at the time of the accident the police car was responding to an emergency call. Nevertheless, the court conditioned the instruction on speed by an 'unless' provision that if the jury believed that at the time of the collision the defendant was responding to an emergency call, the speed limit of 35 mph did not apply, but in such circumstance the driver was subject to the duties prescribed by subsection (6) of KRS 189.390. This qualification of the speed instruction ought not to have been given, for there was no evidence on which to base it. The qualification was probably not prejudicial to the defendant's substantial rights, but in view of the reversal of the judgment on another point we need not decide whether it was or not.

Following the instruction defining the duties of the driver of the automobile in which the plaintiff was an occupant the court instructed that his negligence, if any, should not be imputed to the plaintiff unless the jury believed her husband was her agent, or 'that there was community of interest and equal right, express or implied, to control the management and the automobile in which they were riding.' The conclusion of the instruction was a converse. The verdict found the husband was also negligent but the plaintiff was not responsible.

The form of this instruction is bad. It does not give any guide for the jury to determine agency or what is 'community of interest.' But greater error than the form is the error in submitting an issue of agency at all.

In the course of her testimony Mrs. Williford stated, 'We had my son's automobile.' She gave his name, Daniel Monty Williford, and said he was in the armed forces in Korea. On cross-examination she testified the car had been purchased from the Dalton Motor Company. Hugh Williford testified his son was the owner, but the bill of sale was to his wife. At that time the son, he 'believed,' was seventeen years old.

The defendant proved by the proprietor of the motor company that he had sold the car 'directly to Mrs. Elsie Williford.' The witness had no memory of having talked with her son about the sale. The county clerk testified that Mrs. Williford's conditional sales contract was filed in the clerk's office on June 29, 1957, and that the car was licensed in her name.

The registration of an automobile is prima facie but not conclusive evidence of title in the party in whose name the car is registered. The same may be said in regard to the licensing of the car for operation on the public ways. Wright v. Clausen, 263 Ky. 298, 92 S.W.2d 93; Vansant v. Holbrook's Adm'r, 285 Ky. 88, 146 S.W.2d 337; Lever Brothers Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002. Like all presumptive evidence, the matter of ownership in another person may be refuted. When there is competent and sufficient rebuttal evidence, ownership becomes a question of fact for the jury to determine. Wright v. Clausen, supra; 5A Am.Jur., Automobiles and Highway Traffic, Secs. 63, 1008, 1009; 60 C.J.S Motor Vehicles Sec. 42, p. 179. The decisions of the various courts are lacking in harmony as to the type or quality of evidence sufficient to overcome the presumption of ownership or to raise the issue, as is reflected in the texts cited and in Annotations 7 A.L.R.2d 1347; 27 A.L.R.2d 167.

KRS 186.020 denies the right of the 'owner' of a motor vehicle (other than certain immaterial classes) to 'operate it or permit its operation upon a highway' until he shall have had it registered with the county clerk of his resident county. The statute provides that the owner's bill of sale and other evidence of ownership and title must accompany the application or registration. KRS 186.200 provides that no person 'shall sell, trade, transfer or deliver any motor vehicle without at the same time making a bill of sale' to the purchaser. KRS 186.190(3) prohibits the sale or purchase or transfer of a motor vehicle without the endorsement of the owner and delivery to the purchaser of the clerk's receipt for the registration fee for the current year. Subsection (5) makes it the duty of the purchaser to have the endorsed original registration receipt and a copy of the bill of sale filed with the county clerk. Since these statutes are police measures and regulatory in character, neither compliance nor noncompliance with their terms, although persuasive, is regarded as conclusive of the question of title. Moore v. Wilson, 230 Ky. 49, 18 S.W.2d 873.

In Wright v. Clausen, supra, 263 Ky. 298, 92 S.W.2d 93, 94, where a plaintiff was injured while riding in an automobile, shown by the bill of sale and license registration to have been owned by her, the plaintiff's 'bare statement that she did not own the car,' without any facts or explanation tending to show she was not vested with...