Woodson v. Hare

• Decision Date: 18 February 1943
• Docket Number: 6 Div. 974,6 Div. 975.,6 Div. 973,6 Div. 971,6 Div. 972
• Citation: 13 So.2d 172,244 Ala. 301
• Parties: WOODSON v. HARE et al.
• Court: Alabama Supreme Court

13 So.2d 172

244 Ala. 301

WOODSON v. HARE et al.

6 Div. 971, 6 Div. 972, 6 Div. 973, 6 Div. 974, 6 Div. 975.

Supreme Court of Alabama

February 18, 1943

Rehearing Denied May 13, 1943.

J.P. Mudd, of Birmingham, for appellant.

Stokely Scrivner, Dominick & Smith and Mark L. Taliaferro, all of Birmingham, for appellees.

LIVINGSTON Justice.

Five suits arising out of a collision of automobiles were consolidated and tried in the Jefferson Circuit Court under and by virtue of the provisions of the Act approved September 13, 1935, General Acts 1935, page 1010, Code 1940, Tit. 7, § 221; Tit. 62, §§ 221-227. The plaintiffs in the five suits consolidated are: Mrs. Tom Hare, Tom Hare, F.G. Rinnert individually and as administrator of the estate of Fannie Houston Rinnert, deceased, who was killed in the collision and Ann Rinnert.

Each suit was commenced against four defendants, Carol Watt, Lucius Colmant, Robert Gunn and Virginia Woodson, all minors over fourteen years of age. Robert Gunn was stricken as a party defendant, and the trials proceeded against the three remaining defendants. The jury, in each case, returned a verdict in favor of the defendant Carol Watt, but against defendants Lucius Colmant and Virginia Woodson. Virginia Woodson alone appealed.

The plaintiffs in each suit, rested their case on two counts, A and B. Count A was the same in each suit with the exception of the amount of damages claimed. Count B in each suit was the same except as to the amount of damages claimed.

Counts A and B were predicated upon negligence as a basis for recovery. Insofar as the defendant, Virginia Woodson, the only appellant here, is concerned, the only practical difference between counts A and B is that count A charges, among other things, that Virginia Woodson "operated an automobile upon and along said highway so negligently" and count B charges that one "Robert Gunn" operated an automobile upon and along the highway so negligently as to cause a collision, and that Robert Gunn "was at the time acting within the line and scope of his authority as agent of the defendant, Virginia Woodson."

The theory of plaintiff's case in each suit is that the defendants, Carol Watt, Lucius Colmant, Robert Gunn or Virginia Woodson, according to the different tendencies of the evidence, were driving separate automobiles along a public highway in Jefferson County, known as the Birmingham-Anniston Highway, at a point just outside the limits of the city of Birmingham, and that defendants operated said automobiles so negligently as to cause one or more of them to collide with the automobile in which Mrs. Tom Hare, Fannie H. Rinnert and Ann Rinnert were riding, and as a proximate consequence thereof, caused the death of Fannie H. Rinnert, and the injuries and damages to the other plaintiffs.

To a clear understanding of the issues involved, we state the tendency of a part of plaintiffs' evidence. On the afternoon of August 21, 1940, three automobiles were traveling in a line, one behind the other, in a westwardly direction, approaching the city limits of Birmingham along the public highway known as the Birmingham-Anniston Highway. The plaintiffs, Mrs. Tom Hare, Ann Rinnert and Fannie H. Rinnert, who was killed in the collision and whose administrator is one of the plaintiffs, were riding in a Ford automobile, moving in the opposite direction, that is, eastwardly, along the same highway in the direction of Leeds, Alabama. The three automobiles proceeding towards Birmingham were, in the order of their travel, as follows, a Buick car driven by defendant Carol Watt, a minor, a Dodge car, driven by defendant Lucius Colmant, a minor, and which was traveling a short distance behind the Buick car. The third car in line at the time of the collision was a Chrysler car belonging to Mrs. Paul Lee Woodson, the mother of the defendant Virginia Woodson. The tendencies of the evidence are conflicting as to whether Virginia Woodson or Robert Gunn was driving the Chrysler car at the time of the collision.

As the three aforementioned cars approached the place of the collision, the Dodge car veered or swerved on to the right shoulder of the road, considering the direction in which it was going, and immediately afterwards swerved or cut sharply to the left across the highway and into the path of the Ford car in which Mrs. Hare, Ann Rinnert and Fannie H. Rinnert, now deceased, were riding. The Ford car ran into or against the Dodge car; and the Chrysler, driven either by Robert Gunn or Virginia Woodson, ran into or against the Dodge car, and was thrown into or against the Ford car, contributing to the death of Fannie H. Rinnert, and injuries to the other occupants of the Ford car. Immediately prior to the collision, the Buick car reduced its speed and the Dodge car struck or scraped the rear bumper of the Buick. The speed of all three cars was approximately fifty to sixty miles per hour at or near the time of the collision. All occupants of the three cars were minors.

The important questions presented for determination by this record are stated by appellant, as follows: "The position of the defendant, Virginia Woodson, is, first, that there can be no valid bailment of the automobile as to her, because the bailment rests upon a contract, and Virginia Woodson, being a minor, as shown by both the pleadings and evidence, could not make a binding contract of bailment; and, second, that the relationship of master and servant between Virginia Woodson and Robert Gunn would necessarily rest, if it existed, upon a contract of agency (master and servant), and Virginia Woodson could make no contract of agency that would bind her."

The questions are presented by demurrers to count B, refused charges and exceptions to portions of the trial court's oral charge.

We do not agree with appellant's first insistence. An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, expressed or implied, to such relationship. Cotton v. Harris Transfer & W. Co., 21 Ala.App. 136, 106 So. 220, certiorari denied 214 Ala. 6, 106 So. 223; 6 Am.Jur. p. 209, section 86.

A constructive bailment arises where a person having possession of a chattel holds it under such circumstances that the law imposes upon him the obligation to deliver it to another. And where the bailment may be classified as a constructive bailment, the general rule of quasi contracts, that the rights, duties and obligations of the relationship, since they are imposed by law, may be imposed on persons who have no capacity to assent to an ordinary contract, applies. 6 Am.Jur. page 193, section 66, page 204, section 76. See, also, 13 Corpus Juris page 244, § 10; 17 C.J.S., Contracts, § 6. Moreover, the question as to whether or not the relation of bailee and bailor existed between appellant and her mother, the owner of the Chrysler car, is of no importance here because the mother's interests are in no wise involved in the present litigation.

The second insistence is to be determined on whether or not the negligence of the driver of the Chrysler car, adopting the tendency of the evidence indicating that Robert Gunn was driving, may be imputed to the minor defendant Virginia Woodson, and whether or not it is essential that a technical agency be established and proven on the part of the driver.

The pleading phase of the question was urged by appellant, independently of the contention that defendant could not be liable under the facts, as a matter of law. This phase of the question we will treat later in the course of the opinion.

Appellant's liability in this case is not based upon the strict doctrine of master and servant, or principal and agent, but upon the doctrine of imputed negligence which arises from the presence of the permissive user, the appellant, in the automobile at the time of the collision, which, although it was not being driven by her servant, was being driven with her permission and in her business, or in a joint enterprise of such permissive user and the driver.

Where a permissive user of an automobile occupies the car at the time of the collision, she is liable for the negligence of the driver if (1) she has not abandoned her right to control the car, or (2) if she exercises or has a right to exercise any control over the driver or the operation of the car, or (3) if the ride is for her benefit or for the mutual benefit of herself and the driver. This rule is set forth in Blashfield's Cyclopedia of Automobile Law and Practice, 1935, Permanent Edition, vol. 5, pages 66 to 70, § 2930, as follows:

"By the weight of authority, the owner of a motor vehicle present therein at the time of an accident caused by its negligent operation, is liable for injuries resulting though he is not personally at the wheel; the car being driven by one not his servant, but with his permission and in the business of the owner or in a joint enterprise of the owner and the driver.

"Where an owner is riding in an automobile which is being driven by another in an improper manner, and the evidence does not show a contractual surrender nor an abandonment of the owner's right to control, the inference is warranted that the owner knew of and permitted the improper operation and he is deemed to have consented to the negligent...