Thomas v. Carter, 7 Div. 710

• Court: Supreme Court of Alabama
• Writing for the Court: SAYRE, J. SAYRE, J. PER CURIAM.
• Citation: 117 So. 634,218 Ala. 55
• Docket Number: 7 Div. 710
• Decision Date: 10 November 1927
• Parties: THOMAS v. CARTER.

117 So. 634

218 Ala. 55

THOMAS
v.
CARTER.

7 Div. 710

Supreme Court of Alabama

November 10, 1927

Rehearing Granted June 28, 1928

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action for damages for personal injuries by Willie Thomas against W.A. Carter. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed on rehearing.

Sayre, J., dissenting on rehearing.

L.B. Rainey, of Gadsden, for appellant.

J.P. Mudd and L.D. Gardner, Jr., both of Birmingham, for appellee.

SAYRE, J.

Defendant was driving his automobile from Gadsden to Montgomery. Jewel Thomas was his guest. Plaintiff had [117 So. 636] occasion to be in Montgomery, and, upon the invitation of defendant and Jewel Thomas, her daughter, went with them. At Calera, defendant said he was tired, and, on Jewel's suggestion, allowed her to drive the car. While she was driving, the car overturned, causing injuries to plaintiff. On her complaint, charging negligence to "the defendant, who was the owner of said automobile, or the driver of said automobile, who was operating same under the authority of, and with the consent of, defendant," plaintiff had a verdict for damages; but, on defendant's motion, the court set aside the verdict, and granted a new trial. Plaintiff appeals.

In the first place, appellant, who would sustain the original judgment, suggests that there can be no review of the court's ruling on the motion for a new trial, for the reason that neither the motion nor the judgment thereon are made to appear in the bill of exceptions. The suggestion cannot be approved. Both the motion and the judgment thereon became parts of the record proper--and they so appear in the transcript--and it was not necessary to reproduce them in the bill of exceptions. Code, § 9459. The exception reserved is stated in the bill of exceptions as, it seems, it was necessary that it should be. Code, § 6088; Powell v. Folmar, 201 Ala. 271, 78 So. 47. This case has been frequently followed. Grand Bay v. Simpson, 202 Ala. 606, 81 So. 548; Chambers v. Maxwell, 214 Ala. 284, 107 So. 806, and cases cited.

The verdict rendered was set aside on appellee's motion, and a new trial ordered. The trial court, ruling upon the motion, stated that it was granted "on grounds 42 and 43 of the motion." The stated grounds were that the court erred in giving charges in writing on plaintiff's request as follows:

"(42) The court charges the jury that the owner who is present in the automobile is liable for the negligence of a driver, operating the machine for him

"(43) The court charges the jury that negligence of the operator of a car is not attributable to occupant who is a guest, but such negligence the owner thereof is responsible for if he is present in the car."

The facts heretofore stated appeared in the evidence without contradiction. These facts authorized and required a finding that Jewel Thomas, while driving the car, was the agent of defendant owner--this, because she was driving with the owner's concurrence and approval, and in furtherance of his purpose and undertaking to drive the car from Gadsden to Montgomery. Babbitt, Motor Vehicles (3d Ed.) § 1149. Whether she drove negligently, thereby causing the accident, was, under the evidence--which, as to that, we have not stated--very clearly a question for jury decision. The argument and the oral charge of the court lead us to conclude that the trial was largely conducted upon the assumption that the real question in the case presented by the evidence was whether the owner had placed the operation of his car in the hands of an incompetent driver, who operated it in his immediate presence and under his control. But as matter of law and fact another question was also involved, viz. whether, apart from the question as to the driver's incompetence, the doctrine of respondeat superior obtained in the premises by reason of the fact that defendant constituted the driver his agent for the operation of the car, and we have stated our conclusion that it did. As to this last phase of the case, the presence of the owner in the car was of no consequence in the circumstances shown in evidence; but the hypothesis to that effect was also immaterial and harmless, for the reason that, as we have stated, the evidence showed his presence without conflict. Eliminating the hypothesis as to the presence of the owner, charge 42 meant only that the owner of an automobile is liable for the negligence of the driver operating the car for him--a charge which might better have amplified its hypothesis and conclusion, but yet was no incorrect statement of the relevant law. The first clause of charge 43 had reference to contributory negligence. Of that there is no complaint, nor, on the evidence, any ground of complaint, nor did the rest of the charge differ in effect from charge 42, as to which, in connection with the undisputed evidence, we have stated our conclusion.

But numerous other grounds were assigned in the motion for a new trial, and, notwithstanding the court placed its ruling on the two specific grounds heretofore stated and considered, it is now open to the appellee to show error in the trial on any other of the grounds assigned in the motion. Kilby Car Co. v. Georgia Casualty Co., 209 Ala. 356, 96 So. 319; Birmingham v. Lane, 210 Ala. 252, 97 So. 728.

The charge made the basis of the forty-fifth ground of the motion was given without error. Bearing in mind that the evidence showed without dispute that the driver of the automobile was as to that the agent of defendant, and that the evidence afforded no reasonable ground for concluding that plaintiff was guilty of contributory negligence, it is obvious, on indisputable principles of law, that defendant was answerable for the negligence of the driver. So also as to the charge made the subject of the forty-fourth ground of the motion. And, of course, if, in addition to the undisputed facts, defendant intrusted the operation of his car to the management of an incompetent driver, as charge 41 hypothesizes, then, for that reason, as well as on the doctrine of respondeat superior, defendant was responsible for any negligence of the driver resulting in appellee's injury. The argument that these charges ignore contributory negligence on the part [117 So. 637] of plaintiff finds no reasonable support in the evidence. There was testimony to the effect that Jewel Thomas, the driver at the time of the accident, had previously had some trouble with one of her arms; that she had suffered from "tumors" on her arm, for which she had undergone "operations," and that she was "nervous"; that plaintiff had "told defendant that Jewel was nervous, and not fit to drive the car"; but this evidence hardly sufficed to require that, rather than continue her journey in a car driven by Jewel, over whom, for aught appearing, she had no control, plaintiff should have left the car. Birmingham-Tuscaloosa Railway v. Carpenter, 194 Ala. 144, 69 So. 626; Birmingham Southern v. Harrison, 203 Ala. 284, 82 So. 534; B.R., L. & P. Co. v. Barranco, 203 Ala. 639, 84 So. 839. The foregoing statement of relevant law is sustained by the authorities cited. The peculiar circumstances in which plaintiff found herself but serve to emphasize the propriety of the application of the stated rule, viz. she was far from home near midnight of a dark and rainy night in late October. We do not think contributory negligence can be predicated of her failure to leave the car. She had no such knowledge of impending danger as under the circumstances would have required a reasonably prudent person to leave the car. B.R., L. & P. Co. v. Barranco, supra. Like result follows from consideration of the charge made the basis of ground 47 of the motion.

The charge assigned for error in the forty-sixth ground of the motion for a new trial was said in the original brief to have the same faults as the charge made the basis of the forty-first ground of the motion, our consideration of which has been stated above, and, besides, it was argued that this charge was error because it "authorized recovery against the defendant if the jury was reasonably satisfied from the evidence that the...