Ford v. Hankins ( 1923 )

Argument is directed in the first place to defendant's (appellant's) contention that the verdict and judgment were rendered against the great weight of the evidence, and that, for this reason, the motion for a new trial should have been granted. Plaintiff was injured in person and in property by a collision between the automobile he was driving and a truck alleged to be the property of defendant and operated in his service at the time of the collision. Plaintiff's evidence to fasten liability on defendant was found in the fact that the license tag on the truck at the time of the accident, August, 1921, had been issued to defendant for the last three-quarters of the year, and the public record of such license showed no transfer. In Patterson v. Milligan, 12 Ala. App. 324, 66 So. 914, it was held that the evidence stated above raised a presumption that the truck belonged to defendant, and that case was cited by this court in Penticost v. Massey, 201 Ala. 261,77 So. 675, where it was further ruled that proof of defendant's ownership of an automobile causing injury was sufficient to authorize the inference that the driver at the time was employed by defendant owner and was acting within the scope of his employment. On the second appeal in the same case (Massey v. Pentecost, 206 Ala. 411, 90 So. 866) this court followed its previous ruling, but held that the presumption thus raised is rebuttable, and that, if the evidence in rebuttal is undisputed, clear, and convincing, the defendant is entitled to the general affirmative charge, properly requested, citing Dowdell v. Beasley, 205 Ala. 130, 87 So. 18.

In the case now under consideration the defense, as to this point, was rested on the testimony of witnesses who deposed that within 30 days before the accident defendant had sold his transfer business and the truck in question to one Allsop, and that Allsop's agent or servant was driving the truck in and about Allsop's business at the time. It will be conceded that this testimony was undisputed save by the intendments of the tag and license record; but that theory of the case was so weighted by circumstances tending to bring it into suspicion and doubt that we feel constrained to say that it was not clear and convincing and to hold that the question of defendant's responsibility was for the jury, and, having been found against defendant, should now be left as the trial court left it. Cobb v. Malone, 92 Ala. 630, 9 So. 738.

Originally, Julia S. Ford and Pan-American Transfer Company, a partnership composed of appellant Charles W. Ford and Julia S. Ford, were joined as parties defendant. The court gave the general charge in favor of defendants other than appellant, at the same time informing the jury that, so far as they were concerned, Charles W. Ford was the only defendant. Thereafter the jury returned a verdict for the plaintiff and assessed his damages. On the motion for a new trial and now on appeal, it was and is argued that the verdict was contrary to the court's instruction; in other words, the verdict is construed as a verdict against all the original defendants. We think the point needs no elaborate statement. The other parties defendant having been eliminated, the case stood before the jury precisely as if Charles W. Ford had all along been the sole defendant. There was no error in the verdict nor in the judgment recorded by the court against Charles W. Ford, and dismissing the other defendants. The verdict and judgment, construed with reference to the rest of the record, are in strict accord.

The court, on plaintiff's request, instructed the jury in the following language:

"Under the evidence in this case, if the jury believe it, the driver of the truck was guilty of negligence."

The defense confined itself to a denial of defendant's responsibility for the act of the driver of the truck, and there was no dispute as to what happened at the time of the accident. An ordinance of the city of Birmingham provides that —

"Any vehicle on turning into another street to the left shall keep to the right of the center of the intersection."

Another requires vehicles of the sort "in motion upon the public streets during the period from one-half hour after sunset to one-half hour before sunrise to carry at least two lighted lamps," etc. Without dispute the evidence showed that the vehicle in question was within the letter and purview of these ordinances and that neither was observed in its operation. The violation of these ordinances was negligence per se, and the court properly so instructed the jury, leaving to them the determination of the credibility of the evidence adduced to establish the facts. Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471.

Charge 1, given for plaintiff, correctly states the law according to the statement we made of it in the outset of this opinion. It does not, however, undertake to state the whole law of the case, does not conclude to a finding for plaintiff, and for this reason it cannot be said to err in omitting to hypothesize that the driver of the truck was at the time acting for defendant and within the line and scope of his assigned duties.

Charge 7 was refused without error because it required as a condition to plaintiff's recovery against the appellant defendant that he should be a partner in, or should himself operate, an alleged partnership; whereas, he may have been liable without reference to such partnership — may have been liable even though there was no such partnership, as no doubt the jury found.

Charge 8 pretermitted consideration of the count for wantonness, to which, of course, contributory negligence was no defense. Like consideration disposes of charge 6, as we have marked it.

Charge 14 should have discriminated between the complaint and the separate counts thereof. To illustrate, the burden of proving the allegations of the count for wantonness — a part of the complaint — as a condition to recovery under the simple negligence count, did not rest on plaintiff. So in respect to charges 15 and 16.

Other charges, requested by defendant and refused by the court, are the general charges as applied to the different counts of the complaint. As for the charge of wantonness, the evidence for plaintiff tended to show that a heavy truck, in the dark and without lights or signals of approach, was, in violation of an ordinance made for the safety of streets, driven at high speed from one street into another much-used street and against another vehicle carrying lights. From this evidence the jury were authorized to infer wantonness or, of course, mere negligence. These charges were therefore properly refused. And we have heretofore said enough to indicate our opinion that there was no error in overruling the motion for a new trial.

At least a part of the answer of the witness H. L. Brown to the effect that Allsop was running the business and told him (the witness) that he owned it, the latter clause, was hearsay and properly excluded. Barfield v. Evans, 187 Ala. 579,65 So. 928.

There was no error in excluding the testimony of the witness Julia S. Ford that her husband, defendant appellant, acted as her agent in the transaction with Allsop. The witness disclosed the fact on further examination that she knew only what her husband had told her. The court properly allowed her to state what she did in that connection.

The alleged contract between Allsop and defendant appellant Ford showing the fact and the terms of the sale by Ford to Allsop was in writing, and the writing was the best evidence of it.

The argument of counsel for plaintiff was a permissible statement of his view of the alleged sale to Allsop — a view justified, or to be justified in the mind of the jury, by circumstances of doubt and suspicion tending to bring defendant's version of the case into disrepute.

There was no error to reverse.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.