Teague v. Motes

• Decision Date: 07 April 1976
• Citation: 57 Ala.App. 609,330 So.2d 434
• Court: Alabama Court of Civil Appeals
• Parties: Judith Church TEAGUE v. Willard E. MOTES and United States Fidelity & Guaranty Co. Civ. 682.

Page 434

330 So.2d 434

57 Ala.App. 609

Judith Church TEAGUE v. Willard E. MOTES and United States Fidelity & Guaranty Co.

Civ. 682.

Court of Civil Appeals of Alabama.

April 7, 1976.

Baker, Lester & Wilkes, Opelika, for appellant.

Walker, Hill, Gullage, Adams & Unbach, Opelika, for appellees.

WRIGHT, Presiding Judge.

Suit was first brought by Ralph Teague, Jr. against Mark Motes for property damage arising from an automobile accident. Plaintiff's wife, Judith Teague, was the driver of his automobile. A second suit was subsequently brought by Willard Motes and his subrogee insurance company against Judith Teague for damage to plaintiff's insured automobile. Mark Motes, defendant in the first suit, is the son of plaintiff Motes in the second suit.

By agreement, the two cases were consolidated for trial. Defendant in the first case was represented by the same counsel as plaintiffs in the second. Defendant Mark Motes filed pleas of not guilty and contributory negligence in the first case--Case #653. Defendant Judith Teague filed plea of not guilty in the second case--Case #719.

The accident occurred at an intersection controlled by various traffic lights. The auto driven by Judith Teague was turning left across the lane upon which Mark Motes was traveling when they collided. Each driver insisted the traffic light was favorable in the direction he or she was traveling. There was equal conflict with the testimony of other witnesses.

The trial judge charged the jury on the issues raised by the complaint in each case. He charged on the defense of contributory negligence of the plaintiff in each case. At the conclusion of the charge, plaintiff in Case #719 objected to the inclusion in the oral charge of the defense of contributory negligence of the plaintiff's son. No such defense had been filed. Plaintiff submitted that the charge was improper because the administrative presumption of agency arising from ownership was rebutted by unchallenged testimony that the driver was not upon any business of the owner at the time of the accident. Upon plaintiff's objection to the charge, defendant requested permission to amend her pleading to include the defense of contributory negligence. Amendment was permitted. Plaintiff's motion to strike the amendment was overruled and the cases were submitted to the jury.

The jury returned a verdict in favor of plaintiff in Case #653, awarding damage in the amount of $500.00. The jury returned a verdict in favor of defendant in Case #719. Plaintiffs in Case #719 moved for a new trial, asserting error in the charge as to contributory negligence of the driver, in permitting the amended defense and in overruling the motion to strike the amendment.

After consideration, in a lengthy and well-written judgment, learned trial judge granted plaintiffs' motion for new trial in Case #719. No motion for new trial was made by defendant in Case #653. Defendant Judith Teague appeals from the judgment granting a new trial in Case #719.

Defendant submits three issues on appeal. We will consider them in reverse order.

The third issue is that the trial court was not in error in charging the jury on contributory negligence of plaintiff's driver.

It is the law of this state that proof of ownership of an automobile, though driven by another, raises the administrative presumption of agency between the owner and the driver. Smith v. Johnson, 283 Ala. 151, 214 So.2d 846. Craft v. Koonce, 237 Ala. 552, 187 So. 730. When such proof is made, the burden falls upon the party who would disclaim agency to offer proof in rebuttal that no agency existed. If such proof is presented and is not contradicted, the presumption of agency is removed. Brown v. Southeastern Greyhound Lines, 255 Ala. 308, 51 So.2d 524.

In Case #719, plaintiff by bringing suit for damages to his automobile concedes ownership. Proof that it was being driven by his son when damaged established the presumption of agency between owner and driver. Smith v. Johnson, Supra. In order to remove the effect of such presumption, though established largely by his own action and evidence, plaintiff needed to present testimony that his son was not his agent acting within the scope of his authority at the time and place of the accident. Plaintiff did present evidence that his son was a student at Auburn University while plaintiff was at home in Sylacauga; that the son was traveling from class to his place of residence in or near Auburn when the accident occurred. Defendant presented no contradictory proof. When compared with the proof determined in Smith v. Johnson, Supra, to be sufficient to rebut the presumption, it is evident that the presumption of agency established by mere ownership was overcome by plaintiff in this case. Defendant, to claim a defense of contributory negligence against plaintiff, had to offer some proof to contradict the evidence of plaintiff that no agency existed between him and his son. Having failed to do so and present a question for the jury he was not entitled to claim contributory negligence of the driver against plaintiff's suit. The court erred in permitting such defense and charging the jury thereon. However, for reasons stated hereafter, such error was not such as to require the granting of a new trial.

Defendant's first and second issues are interrelated. The second issue is that because of the verdict reached by the jury in Case #653, the primary issue in Case #719 became res judicata. Therefore, the erroneous charge by the court on contributory negligence was not injurious to plaintiffs and a new trial should not have been granted because of it.

Let us examine these issues in light of the situation presented by consolidation of cases for trial. Rule 42(a) ARCP provides for consolidation of actions involving a common question of law or fact. The actions in this case were not consolidated for trial by order of the court, but by agreement and request of the parties. Consolidation of cases does not require mutuality of parties but mutuality, in some degree, of issues and law. The instant case is classic example of proper consolidation. Though the parties are different, the claims for relief arise from the same occurrence and involve the same issue, negligence vel non, of...