Towry v. Moore

• Decision Date: 11 January 1968
• Docket Number: 8 Div. 237
• Parties: Eva Lou Mason TOWRY v. Johnny MOORE.
• Court: Alabama Supreme Court

Page 889

206 So.2d 889

281 Ala. 644

Eva Lou Mason TOWRY v. Johnny MOORE.

8 Div. 237.

Supreme Court of Alabama.

Jan. 11, 1968.

Bell, Richardson, Cleary, McLain & Tucker, Huntsville, for appellant.

Ford, Caldwell, Ford & Payne, Huntsville, for appellee.

MERRILL, Justice.

This appeal is from a judgment in favor of plaintiff for $15,000 as a result of defendant's automobile colliding with plaintiff's son who stood near the paved highway and was killed.

Count One, charging simple negligence, alleged that defendant, Joe David Towry, the agent, servant or employee of defendants, Edward Eli Mason and Eva Lou Mason Towry, while acting within the line and scope of his agency, so negligently drove the automobile against the body of the deceased that he was killed. Count Two charged wantonness, but as the verdict was addressed to Count One, we are not here concerned with Count Two. The trial court gave the general charge in favor of defendant, Edward Eli Mason, the father of Eva Lou Mason Towry.

The main question with which we are faced is that of the alleged agency of Joe David Towry at the time and place of the accident.

The accident occurred December 24, 1964 about 6:00 P.M. Joe David Towry was scheduled to marry Eva Lou Mason at her home at 7:00 P.M. that evening. (In answer to a question from the bench during oral argument, we were informed that because of the accident, the wedding was postponed, but took place later.) Towry did not have an automobile. He rode in Eva Lou Mason's car with her to her job that morning, and then used the car for some personal errands and washed it at a coinoperated car wash. He picked up Eva Lou at her place of employment that afternoon and drove her to her father's home where she lived. On the way home they discussed their plans for their wedding. When they arrived at her home, Eva Lou got out of the car and Towry left in it to get his clothes for the wedding which were at his mother's house, and on his return trip he was to pick up his uncle and bring him to the wedding. He picked up his clothes and was on his way to his uncle's home when the accident happened. We quote from the record:

'Q So that at the time Mr. Towry left you at Eli Mason's home, your home, you let Mr. Towry have your car for the purpose of getting his clothes for your wedding and for the purpose of bringing a guest to your wedding?

'A Yes, sir.'

Eva Lou Mason's Falcon automobile was purchased when she was 19 years of age. She had previously owned a Valiant which the dealer accepted as her down payment. She picked out the color, year model and type of car she wanted. She made the financial arrangements with the dealer for the purchase of the car and made the monthly payments due to the finance company from her own earnings. Although legal title to the Falcon was taken in her father's name and the tag issued in his name, he had paid no money on it and both he and his daughter considered it to be her automobile. She kept the keys and if her father used it, he asked her permission. There is no real question but that it was her car.

Appellant's first argued assignment of error is that the trial court erred in giving charge A at the request of the appellee, which reads:

'The Court charges the jury that if you are reasonably satisfied from the evidence that Eva Lou Mason Towry was the owner or the bailee of the car being driven by Joe David Towry and that the trip being made by Joe David Towry was for her benefit or for her benefit and the benefit of Joe David Towry mutually then the jury is authorized to find from such evidence that Joe David Towry was the agent of Eva Lou Mason Towry.'

Appellant contends that this court has never 'held that the negligence of a driver could be imputed to a third person merely because the third person was the owner or bailee of the automobile and was deriving some benefit from the trip in question.' Limiting that contention to the doctrine of imputed negligence, as expressed in our cases, we can agree. But here, we have the question of principal and agent. Alabama cases treat the doctrine of imputed negligence primarily as a shorthand method of establishing an agency relationship. Foster v. Floyd, 276 Ala. 428, 163 So.2d 213. Here, however, it is not necessary to resort to imputed negligence to reach the agency relationship.

We think that under the facts previously stated, a jury question was presented as to whether Eva Lou had constituted Towry as her agent for the operation of the car on the trip which culminated in the accident.

Reverting now to appellant's contention, we think it is answered in the case of Thomas v. Carter, 218 Ala. 55, 117 So. 634. There, it was urged that the court erred in giving charge 42, which read: '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.' This court disagreed, saying, in part:

'* * * 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 case of Erlich v. Heis, 193 Ala. 669, 69 So. 530, supports the giving of charge A. There, the defendant's son was driving defendant's car, and his mother and two of her friends were riding with him when plaintiff's daughter was killed. Even though 'The son testified that he was going to Birmingham solely to see a physician, and that his mother's going with him was but an incident to his journey, and that he was going independent of her, and whether she went or not'; and although the father (owner) knew only that his wife had said she was going to Birmingham, but he did not know how she was going, this court held that 'the jury could have well inferred that appellant knew that she would probably go in the automobile, and would have the son drive her,' that the trip was not solely in the interest of the son, and that it was for the joint benefit of the son and appellant's wife, and that the son was acting as an agent or servant for his father in driving his mother to Birmingham.

In Hudgens v. Boles, 208 Ala. 67, 93 So. 694, it was undisputed that the defendant's car was being operated by his minor son without defendant's knowledge, and although the son testified that the trip was 'mostly his', he was also driving for his elder sister, and this court held that the question of the son's agency 'was properly submitted to the jury.'

So we do have cases where agency has been established when it could be inferred from the evidence that the agent, whether authorized or not, made a trip for the joint benefit of himself and the owner.

It may have been that an explanatory charge should have been given to show that charge A did not include imputed negligence, but it was a correct statement of the law pertaining to principal and agent, and the trial court did not err in giving it. We note that the court did give...