Toranto v. Hattaway

• Decision Date: 06 June 1929
• Docket Number: 6 Div. 287.
• Citation: 122 So. 816,219 Ala. 520
• Parties: TORANTO ET AL. v. HATTAWAY.
• Court: Alabama Supreme Court

122 So. 816

219 Ala. 520

TORANTO ET AL. v. HATTAWAY.

6 Div. 287.

Supreme Court of Alabama

June 6, 1929

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for personal injuries by Vivian Hattaway, a minor suing by her next friend, M. F. Hattaway, against Joseph B Toranto and A. M. Rudderman. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Stokely, Scrivner, Dominick & Smith and A. Leo Oberdorfer, all of Birmingham, for appellants.

Fred A. Gibson, Clifford J. Griffith, and David J. Davis, all of Birmingham, for appellee.

BOULDIN J.

Action for personal injuries resulting from an automobile collision. Plaintiff was riding in one of the cars as a guest or passenger. She sues the owner and the driver of the other car.

The primary question here presented is whether J. B. Toranto, the owner, is legally responsible for the negligence of A. M. Rudderman, the driver, under the doctrine of respondeat superior. Appellant Toranto insists he was entitled to the affirmative charge.

Plaintiff introduced the answers of defendant Rudderman to statutory interrogatories. On the issue now before us, these answers disclosed in substance and effect: The car was owned by J. B. Toranto. Witness was driving it at the time. The car had been in his possession about 30 minutes; was using it at the request of Al Toranto; was to get the automobile and bring it to Al Toranto, as he was unable to drive; was going to Thirteenth street and Eleventh Avenue South, in Birmingham; the accident occurred at Eighteenth street and Avenue F.; was not employed by J. B. Toranto at that time; was living at the time at Mrs. Ringold's home.

Further testifying as a witness on his own behalf, Rudderman said in substance: Witness got the car at Twenty-First street and Fourth avenue; the car had a puncture at that point, "and some other fellows had taken us to the house. It started raining and Al Toranto requested me to get the car and bring it to him, as he had hurt his arm and was unable to drive the car. I did not get the car from this defendant here (J. B. Toranto). I was not in his employment at that time." On cross-examination witness testified in effect: J. B. Toranto was in the business of conducting the Vanity Boot Shop; Al Toranto was a brother, working in that shop; Rudderman was a friend of Al. "I came from Atlanta to keep the boy (Al Toranto) company, because he was a stranger here. *** I worked there a couple of weeks. I was not working there at that time. I don't know whether they had a manager at the store while I worked there. I could not say who hired me. He hired me to come over and keep him company. Possibly he hired me just to sit around to look at. I didn't know anything about selling shoes. I sold very few shoes. I tried to. Joe Toranto came back from up north somewhere, and when he came back my job went. I didn't know Joseph Toranto until that time. I had seen him. I cannot recollect that I had driven the car while I was working in Joseph Toranto's shop. I don't remember that I drove it at all, then. Al Toranto used the car occasionally when he had a date. That is the only time I knew of. I only worked for Al Toranto two weeks. I did that to keep him company. I imagine I was hired. I didn't receive any weekly salary. I just stayed around there. Al was too young a man to handle the store himself, and he was new in the store, and there were some old salesmen there that knew more about it. *** I didn't know who was in charge of the business. Joseph B. Toranto was not in town. I had driven that car before. I could not say exactly when. I have ridden in the car. I imagine I have driven it myself once or twice, before then. I hadn't driven it for Joseph Toranto. I didn't even know Joseph Toranto at that time. I didn't know him at all. I do not remember how many times I had driven the car before. I never delivered any shoes with it."

Rudderman further testified he was 22 years of age. The accident occurred on a rainy Sunday evening, January 31, 1926. This was all the testimony on this issue before the jury.

We have thus presented the evidence in detail, that any omissions or other features tending to weaken the testimony or afford ground for reasonable inference connecting J. B. Toranto with this collision may be considered.

Appellee relies upon the presumption arising from ownership of the car; and while conceding the plaintiff's evidence shows Rudderman was not in the "employment" of the owner, still insists Rudderman may have been in the "service" of and acting for him so as to render the owner liable, and that the evidence is not so strong, clear, and undisputed as to overcome the presumption and call for the affirmative charge.

Beginning with the well-considered case of Penticost v. Massey, 201 Ala. 261, 77 So. 675, it was declared that proof of the ownership of the car, and further proof that the negligent driver was his chauffeur, or in other employment involving the driving of a car in the conduct or promotion of the business in which he is employed, raises a presumption that the driver was acting within the line and scope of his employment at the time. Following the lead of authorities, quoted and cited, from other states, the basis of the presumption so declared is that the owner in such case has special knowledge of the relation between him and his servant, and is in better position to show whether the servant has gone outside the scope of his employment on a mission of his own.

This rule was reaffirmed on second appeal (Massey v. Pentecost, 206 Ala. 411, 90 So. 866), where it was said on the authority of Dowdell v. Beasley, 205 Ala. 130, 87 So. 18: "If the [rebutting] evidence is strong, clear, convincing, and undisputed," the defendant is entitled to the affirmative charge. In the Massey Case the rebutting evidence was held not sufficient to warrant the affirmative charge, and in the Dowdell Case held that it was.

Ætna Ex. Co. v. Schaeffer, 209 Ala. 77, 95 So. 351, and Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16, were other cases where there was proof not only of ownership of the car in defendant, but proof that the driver was...