Thompson v. Havard
| Decision Date | 15 May 1970 |
| Docket Number | 1 Div. 595 |
| Citation | 235 So.2d 853,285 Ala. 718 |
| Parties | Nollie THOMPSON v. Ross HAVARD et al. |
| Court | Alabama Supreme Court |
M. A. Marsal and Howell, Johnston, Langford & Finkbohner, Mobile, for appellant.
Richard W. Vollmer, Jr., Ralph Kennamer, Mobile, for appellees.
The appellant, Nollie Thompson, who was the plaintiff in the lower court, sued for personal injuries and damages to himself allegedly caused as a proximate result of the combined negligence of the owner of an automobile, Mrs. E. S. Havard, and of the driver, Ross Havard. The gravamen of the action is that the defendant, Mrs. Havard, entrusted her automobile to her son, Ross, to operate, knowing at the time that he was a dangerous and incompetent driver, that the said Ross Havard so negligently drove or operated the said automobile as to run it into an automobile in which the plaintiff was a passenger, and as a proximate result of the combined negligence of both defendants, the plaintiff, Thompson, sustained serious and permanent personal injuries and damages.
Judgment was rendered against Ross and in favor of the defendant Mrs. Havard. The plaintiff appeals from the latter judgment. There is no appeal by the defendant Ross Havard nor has the appellee, Mrs. Havard, cross-assigned any error upon the record brought up by the appellant Thompson.
The appellant's first two assignments of error complain of the court's giving the appellee's requested written charges No. 9 and No. 12. While the appellee insists on the correctness of each of these charges, she argues more stringently that giving them was without error to the appellant, because the trial court should have given the general affirmative charge which she requested at the close of the evidence for the plaintiff in chief at which time the appellee also rested. The appellee contends that the plaintiff failed to establish his case against her even by a scintilla of evidence. She cites the rule that where a losing party is not entitled to recover in any event, he cannot complain of error in the giving of any other charges to the jury, insisting that such, at most, would be error without injury. Coe v. Louisville & Nashville R.R. Co., 272 Ala. 115, 117, 130 So.2d 32; Cummings v. Caldwell, 276 Ala. 375, 378, 162 So.2d 470. When the plaintiff, upon whom lies the burden of proof, fails to make out his case, it is not incumbent upon the defendant to introduce any evidence, and his failure to do so should not create inference for the purpose of making out a case for the plaintiff after he has failed to make out one for himself. Southern Ry. Co. v. Gullatt, 150 Ala. 318, 43 So. 577.
On this point of whether or not Mrs. Havard was entitled to the affirmative charge as she contends for, we have reviewed all of the plaintiff's evidence offered to the point in the trial, when he rested his case, and appellee rested her case, to determine if there was any evidence or inference therefrom, which warranted submitting the case to the jury.
Pertinent testimony introduced by the plaintiff was that the automobile which the defendant, Ross Havard, was driving when it collided with the vehicle in which the plaintiff was riding, was at that time registered in the name of the defendant, Mrs. E. S. Havard, whose address was the same as that of the defendant, Ross Havard, her son. This proof of registration created a rebuttable presumption that Mrs. Havard was the owner of that automobile. Stanley v. Hayes, 276 Ala. 532, 165 So.2d 84; State Farm Mut. Auto. Ins. Co. v. General Mut. Ins. Co., 282 Ala. 212, 210 So.2d 688. Our decisions hold that proof of ownership of a motor vehicle causing injury raises a rebuttable presumption that the person in the possession and control of that vehicle was the agent or servant of the owner, and was acting within the line and scope of his employment. Rogers v. Hughes, 252 Ala. 72, 39 So.2d 578, and cases cited.
We think that if such a rebuttable presumption of agency arises from proof of ownership, it follows as a logical corollary, that a rebuttable presumption of entrustment or gratuitous bailment arises that the vehicle was rightfully in the possession of and being operated by the driver with the permission of the owner, though not necessarily for the latter's benefit. The purpose for which the vehicle is being used by the driver to whom it was entrusted is not important or controlling in such a case. What counts is that the possession and control of the vehicle was placed or entrusted to the driver with the consent of the owner.
While these presumptions, which arise from proof of ownership, are said not to be evidence in themselves, they nonetheless, serve as evidence until rebutted by strong, clear and undisputed evidence offered by the defendant that the driver of the vehicle at the time of the collision was not the agent of the defendant owner, or was not operating the vehicle with her permission or consent. Rogers v. Hughes, supra; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897.
When the plaintiff rested, the defendant, Mrs. Havard, rested also without putting on rebuttal evidence, thus, the plaintiff had no need to offer further proof that Ross Havard was operating the automobile of the defendant, Mrs. Havard, at the time of the collision with her permission.
The next question is, was there evidence that this defendant's son was a dangerous and incompetent driver when she entrusted her automobile to him with her permission to operate it, and if so, did she know of his incompetence to drive an automobile?
To prove Ross' incompetence to drive, the plaintiff, over Mrs. Havard's objection, introduced into evidence, in its deleted form as altered by the trial court, a certified document from the records in the State of Alabama Department of Public Safety, of the driving record of the defendant. This exhibit revealed that Ross Havard was nineteen years of age when the accident occurred, that his original driver license was issued to him on January 7, 1964, about three years prior to the accident and that during that period of time he was charged with, convicted of and fined for the following offenses, viz.: speeding in Washington County on September 11, 1964; speeding in Mobile County on December 17, 1964; speeding in Mobile County on January 5, 1965; speeding in Mobile County on January 20, 1965; speeding in Clarke County on April 16, 1965; traffic signal violation in Baldwin County on May 9, 1965; driving without a driver license in Mobile County on November 2, 1965; speeding in Clarke County on July 15, 1966; speeding in Mobile County on March 1, 1967; speeding in Mobile County on March 22, 1967; reckless driving reduced from driving while intoxicated in Tuscaloosa County on April 17, 1967. In all there were eleven moving violations of which this defendant was convicted within approximately three years prior to the accident complained of.
As to the sufficiency of this evidence to take the issue of driver incompetency to the jury, the case of Broesche v. Bullock, 427 S.W.2d 89, 93, (Tex.Civ.App.1968) is in point. In that case the appellant driver was a minor twenty years of age. He was first licensed to drive when he was sixteen and had been driving for about three years when the accident occurred. In that brief time, the opinion states, he had been cited and paid fines for seven moving traffic violations and had received a letter from the Department of Public Safety, reprimanding him for his driving. He had received a speeding ticket in October of 1962, a speeding ticket in January of 1963, a warning letter from the Taxes Department of Public Safety in April 1963, a speeding ticket in December 1963, a ticket for contest of speed in March of 1964, and a speeding ticket in October 1964. In addition, he had received a ticket for running a red light in March 1964. The court said:
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