Stevens v. Deaton Truck Line

Decision Date11 October 1951
Docket Number7 Div. 991
PartiesSTEVENS v. DEATON TRUCK LINE, Inc.
CourtAlabama Supreme Court

Embry & Embry, Pell City, and D. G. Ewing, Birmingham, for appellant.

Francis H. Hare and R. Clifford Fulford, Birmingham, for appellee.

LAWSON, Justice.

This is a suit by Freeman Stevens, a minor, who sued by his next friend, Grady Stevens, Sr., against Deaton Truck Line, a corporation, and Walter Roberts to recover damages for personal injuries sustained by the said minor when an automobile in which he was riding as a passenger collided with a motor vehicle driven by Walter Roberts. Liability was sought to be fixed on Deaton Truck Line, a corporation, hereafter referred to as Deaton, under the doctrine of respondeat superior.

At the conclusion of the evidence offered by the plaintiff and both defendants, the trial court granted the motion of Deaton to exclude the evidence as to it. Upon request, the trial court gave the general affirmative charge without hypothesis for the defendant Deaton. This charge amounted to a directed verdict for that defendant. A verdict in favor of Deaton was returned by the jury and judgment was in accord with the verdict. As to the defendant Walter Roberts, the jury was unable to agree and a mistrial was declared as to plaintiff's claim against that defendant.

From the judgment in favor of Deaton, plaintiff appealed to this court. Subsequent to appeal and prior to submission the minor, Freeman Stevens, was killed and this cause was revived in the name of his administrator, Grady Stevens, Sr.

Laying aside the question as to whether it was proper to grant the motion to exclude the evidence, Johnson v. Shook & Fletcher Supply Co., 245 Ala. 123, 16 So.2d 406; Mt. Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710, we come to the question of whether the trial court erred in directing a verdict in favor of Deaton. It is settled that where by the undisputed evidence plaintiff had not shown that he is entitled to recover on his complaint, a court may direct a verdict for defendant, and it is immaterial whether the jury believe the evidence or not. In either event plaintiff has not proven his complaint. Cannon v. Louisville & N. R. Co. et al., 252 Ala. 571, 42 So.2d 340; O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580, and cases cited.

On and prior to May 20, 1947, the defendant Walter Roberts owned a truck-tractor and a trailer which, when operated together, were capable of hauling freight. Deaton was engaged in the business of hauling freight as a common carrier both intrastate and interstate. It had permits or certificates of convenience and necessity issued by the regulatory agency of this and other states and by the Interstate Commerce Commission. On May 20, 1947, Walter Roberts and Deaton executed the following instrument:

'This lease agreement is made this 20th day of May, 1947, between W. E. Roberts, hereinafter called the Owner, and Deaton Truck Line, Inc., hereinafter called Company, as follows:

'1. Owner hereby rents, leases and delivers to the Company the exclusive control of the following described motor vehicle: No. 30-1946 Model Chevrolet, Motor No. DEA-451291, Ala. Tag 1H2-5332 & 1946 Model Alabama Trailer, Serial No. L-46309, 28', Flat, Ala. Tag 1T2-921.

'Upon the terms and conditions set out below.

'2. The Company shall have the exclusive use and control of the said vehicle for the entire term of this lease, and the said vehicle shall be used for the transportation of freight, both intrastate and interstate, under the authority of the Company, and for no other person, Firm or Corporation.

'3. This lease may be terminated by either party after giving the other thirty days written notice of termination; and shall continue for one year from date hereof and from year to year thereafter until so terminated.

'4. The Company agrees to pay as rent to the Owner for the use of said vehicle, the following percentages of gross revenue derived by the Company from the operation of said vehicle, subject to the provisions of other Paragraphs hereof:

'82 1/2% on all freight classified in the National Motor Freight Classification as 6th Class or higher. 87 1/2% on all freight classified in the National Motor Freight Classification as 7th Class or lower.

'5. All identification plates, both State and Federal (but not including license tags) shall be bought in the name of the Company and paid for by the Company, and shall be displayed on this vehicle as long as this lease remains in effect. Upon the termination of this lease, the said plates shall remain the property of the Company and may be removed by it, together with all signs which may be painted on said vehicle. Owner has, or will, deposit $150.00 with the Company to guarantee performance of all provisions of this lease, and agree that any sums expended by the Company to carry out this paragraph hereof, and to reimburse the Company for any expenses caused by the Owner violating any paragraph hereof, shall be deducted from the said deposit the remainder thereof, if any, shall be refunded to the Owner not less than sixty days after termination of this lease.

'6. Owner agrees to keep the said vehicle in good mechanical condition and repair at his own expense for the duration of this lease, and further agrees to pay all costs of operating same, including without restricting the generality of the above, claims for cargo shortages, gasoline, oil, tires, parts repairs, greasing, tarpaulins, fines for any cause, driver's salary, and permit fees charged by any State for the transportation of property on the said vehicle in such State. For the payment of all his obligations set out in this lease, owner waives all rights of exemption under the Constitution and Laws of the State of Alabama or any other State, and agrees to pay a reasonable Attorney's Fee, if the employment of an Attorney is necessary to collect same.

'7. The Company will pay all mileage taxes imposed by any State for the operation of said vehicle, when operated in accordance with provisions of this lease; and will pay all cargo, property damage and public liability insurance premiums on the said vehicle when used in accordance with the provisions of this lease. The Owner, in addition to the expenses mentioned in Paragraph 6 above, will pay for State License Tags on said vehicle, and pay Collision, Fire, and Theft Insurance premiums on the said vehicle, if any such insurance is carried; and in the event that the Owner is indebted to the Company for any reason, it is agreed that the said Collision, Fire & Theft Insurance must be carried by the Owner in an amount not less than his indebtedness to the Company, payable to the Company and the Owner as their respective interests may appear. Insurance in excess of standard coverage, which may be required from time to time, if any, shall also be paid by the Owner. All Insurance Policies referred to above must be written by Insurance Companies acceptable to the Company.

'8. In the event the driver of the said vehicle violates any rule or regulation of the Interstate Commerce Commission, or any Federal, State or Municipal Law or Ordinance, and as the result of such violation the Company is fined in any Court Owner will reimburse the Company for such fine and all expenses in connection therewith. Owner will also reimburse the Company for any and all freight charges which the Driver of the said vehicle may collect and fail to remit to the Company.

'9. Owner agrees to buy 300 shares of common stock of the Company at and for the total price of $3,000.00, from any source the Company can secure same for Owner. This purchase price is payable $50.00 per week; and to secure the payment thereof Owner hereby assigns to the Company as agent for the Sellor of such stock 12 1/2% of the gross revenue derived by the Company from the operation of the vehicle under this lease, to be deducted from rent payable by Company to Owner under the terms hereof.

'10. In the event Owner defaults in such payments, or terminates this lease agreement, then at the option of the Seller of said Stock, this purchase agreement shall be null and void and Owner forfeits all amounts previously paid on such purchase price. No share of said stock shall be considered paid for in full and delivered to Owner, until the entire number of shares hereby purchased is paid for in full.

'11. The Seller of said Stock has deposited same in escrow to guarantee delivery thereof to Owner when payment therefor has been completed; but all voting rights in such stock shall remain in present owner thereof until purchase price is paid in full as above provided. Interest at the rate of 6% per annum on unpaid balance shall be charged.

'Witness our hands and seals at Birmingham, Alabama, this, the 20th day of May, 1947.

'/s/ W. E. Roberts

'(Owner)

'Deaton Truck Line Inc.

'By /s/ W. E. Whitman, Sec.

'(The Company)'

It was the contention of the plaintiff below that by virtue of the provisions of the instrument set out above and the evidence as it related to the manner in which the parties operated under it, the relationship of master and servant existed between Deaton and Roberts. It is clear from this record that the trial court agreed with plaintiff as to such relationship, but excluded the evidence as to Deaton and directed a verdict in its favor on the ground that the evidence was not sufficient to show that at the time of the accident Walter Roberts was acting within the line and scope of his employment.

Agreements more or less similar to the one entered into between Deaton and Roberts have been before the courts of other jurisdictions. In some of the cases the relationship between the parties was held to be that of master and servant and the lessee has been charged with the negligence of the lessor (owner of the vehicle) where the latter at the time of the negligent act was acting within the line and scope of his employment. Gas...

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