Patterson v. Milligan , 12 Ala. App. 324 ( 1914 )

THOMAS, J.

-The plaintiff, appellee here, while riding on his bicycle along or across a street in the city of Birmingham, was injured by a passing automobile. The complaint avers, among other things, that plaintiff’s “said injuries and damage were proximately caused by the negligence of the defendant’s servants or agents while acting within the- line and scope of their employment” in the operation of said automobile. At the conclusion of the evidence, the defendant requested the general affirmative charge, which was refused, and, after verdict and judgment against him, made a motion for a new trial, which was overruled. The action of the court in each of these particulars is assigned as error.

The burden of proof was on the plaintiff, in order to make out his case, to show, not only that his injury was the proximate result of the negligence of the person operating the automobile, but also, as was alleged, that such person was the servant or agent of the defendant, and was, at the time of such negligence, acting within the line and scope of his employment.

The only evidence offered by the plaintiff tending to establish the latter fact was, first, the registration record, required by section 5 of the act approved April 22, 1911 (Gen. Acts 1911, 636), to be kept in the probate office, which record showed that, in compliance with the provisions of the act mentioned, the defendant had on November 7,1912, registered with the Secretary of State as belonging to him (defendant) one Oldsmobile of 25 horse power, etc., and that the Secretary of State had assigned to this car number 509 as its registration number, and had issued to defendant a certificate of registration or tag accordingly; and, second, the testimony of plaintiff’s witnesses to the effect that the accident or collision in which plaintiff was injured occurred about the 1st of December, 1912 (after, as seen, said registration in November previous), and that the automobile which injured plaintiff bore the tag number 509 and a printed sign “for hire.” This was the only description plaintiff’s witnesses gave of the automobile which ran against plaintiff. The fact that it bore the tag number 509 was, in the light of the record mentioned, presumptive evidence that it was the Oldsmobile that had been so previously registered under that number (509) as the property of the defendant, and that it was still his property —the records showing no transfer — and that the person in charge of and operating it was his servant or agent. — Gen. Acts 1911, 634; 22 Am. & Eng. Ency. Law (2d Ed.) 1242.

These presumptions, however, while sufficient to make out a prima facie case as to the point under consideration, were yet, of course, rebuttable ones (22 Am. & Eng. Ency. Law, supra) ; and we are of opinion that the evidence for the defendant overwhelmingly rebutted them and showed, not only that the car which struck plaintiff was not an Oldsmobile, though it did bear, as testified to by plaintiff’s witnesses, the tag number 509, but also that the car which did strike him was not defendant’s property, and that the person in charge of and operating it was not his servant or agent, and that defendant was not in'the car and had nothing to do with its ownership, management, possession, or control at the time, and knew nothing of the accident or of the fact that the car bore the same number (509) as his Oldsmobile until afterwards, when the plaintiff called on him for damages, informing him that he (plaintiff) had been injured by car No. 509. The defendant thereupon denied all liability, and stated that it could not have been his car. The plaintiff then and there examined defendant’s car, which was in front of the latter’s store, and which was an Oldsmobile, practically new, bearing the tag 509, and stated, according to defendant’s testimony, that it was not the car that ran against him, and, according to plaintiff^ own testimony, that defendant’s car looked “newer, brighter, and cleaner” than the one that ran against him. Outside of this, plaintiff added that he observed no distinguishing feature between the two cars, except that the car which struck him had a “for-hire” tag on it, while defendant’s did not. Defendant’s evidence showed that defendant’s said car had never been run for hire and had never had any such tag as “for hire” on it, and that he bought the car brand new in September, 1912, shortly before he registered it. The chauffeur, who was admittedly running, the car that struck plaintiff, and the assistant, who was admittedly the only person with him at the time, both testified that the car which struck plaintiff was a Stevens-Duryea — a secondhand car — that belonged to one Douthit, which was at the time of the accident, and for some time prior thereto being run for hire by the chauffeur under an agreement with Douthit to divide the profits, and that this car at the time of the accident had a “for-hire” tag on it', as well as a tag bearing the number 509. All the other facts and circumstances in evidence tended to bear out and support this testimony with nothing to conflict with it, save the presumption mentioned.

The way in which it came about that the Stevens-Dur-yea car bore the tag number 509 was, according to the undisputed evidence, as follows: Neither Doutliit, the owner of it, nor the chauffeur, who was operating it for him under the agreement as stated, had at the time of the accident, which was about December 1,1912, as said, paid the registration or license tax on the car for the" new year commencing in October, 1912; and the chauffeur, fearing arrest if caught by the authorities running the car without a new tag — a tag for that year — applied, some time before the accident, to defendant’s chauffeur, with whom he was on intimate terms, to loan him, until he or Doutliit could pay the tax and get his tag for that year, the duplicate of the tag 509, which had, in compliance with the terms of the act cited, been issued to defendant by the Secretary of State at the time of the issuance to defendant of the original tag 509. Defendant’s chauffeur, without defendant’s consent or knowledge, as was undisputed, complied with this request, and, as was also undisputed, this duplicate' tag 509 Avas placed on the Steven s-D,uryea car, while the original remained on defendant’s Oldsmobile, which, at the time of the accident, was in the garage of Hughes & Nixon to have some of its valves ground, as the defendant’s evidence showed. There was no evidence for the plaintiff or otherwise, either direct or inferential, to conflict, as stated, with this evidence for defendant, except the bare presumption to which Ave have heretofore adverted, unless possibly it be the testimony of plaintiff himself on this point, to Avhich we have alluded, and which we have set out in substance and which — every word of it — may be true, Ave think, entirely consistent with defendant’s evidence.

Whether or not the mentioned opposing presumption Avas or is such in character as to have forbidden the court from giving the general affirmative charge for defendant, AAThich Avas requested and refused (as bearing on Avhich point, see, however, Roman v. Lentz, 111 Ala. 71, 58 South. 438; L. & N. R. R. Co. v. Marbury, 125 Ala. 254, 28 South. 438, 50 L. R. A. 620; A. G. S. R. R. Co. v. Moody, 90 Ala. 46, 8 South. 57; Wynn v. State, 65 South. 687; and 22 Am. & Eng. Ency. Law, 1235, 1236), is a question we need not and do not consider, since the judgment must be reversed and a new trial had anyway on account of the overruling by the court of defendant’s motion for a new trial, and since, on another trial, the evidence may be different. The great weight, to say the least, of the evidence on this trial was,- as seen, certainly opposed to any theory that the car which struck plaintiff was defendant’s Oldsmobile, and the preponderance is so decided as to clearly convince us that the verdict is wrong, and ought not to be permitted to stand.-Cobb v. Malone, 92 Ala. 630, 632, 9 South. 738; So. Ry. Co. v. Morgan, 171 Ala. 294, 54 South. 626; C. Ry. Co. of Ga. v. Letcher, 69 Ala. 106, 44 Am. Rep. 505; White v. Blair, 95 Ala. 147, 10 South. 257; Teague v. Bass, 131 Ala. 422, 31 South. 4; Cox v. Birmingham, 163 Ala. 170, 50 South. 975; L. & N. R. R. Co. v. Lee, 97 Ala. 325, 12 South. 48; Birmingham Rolling Mill v. Rockhold, 143 Ala. 115, 42 South. 100; Birmingham Ry. Co. v. Clay, 108 Ala. 233, 19 South. 309; Birmingham Ry. Co. v. Owens, 135 Ala. 154, 63 South. 8. There was no other theory supported by any evidence at all upon which defendant could have been held liable.

It is true that the defendant stated on the stand that he at one time owned the Stevens-Duryea car mentioned, but it is also true that the evidence showed without conflict that long .before the accident he had sold it to said Douthit, to wit, in September, 1912, and ceased then to have any management, possession, or control over it, or any interest in it, except a lien securing the notes then given by Douthit for the balance of the unpaid purchase money, which notes and lien defendant, on the day of the sale, transferred and assigned to the Highland Garage as security for the balance of the purchase money for the Oldsmobile mentioned, which he. on that day bought, new, from them. These facts were testified to by the defendant, by Douthit, and by Whitehead, the representative of the Highland Garage, who negotiated and conducted the sale of the Oldsmobile. None of this testimony was ill any way, either directly or inferentially, denied. It was also shown by the testimony of the defendant, by that of Donthit, by that of defendant’s chaf-fenr, and by that of the chauffeur, who was operating the Stevens-Duryea car at the time it struck plaintiff, that the latter chauffeur had never at any time, either then, before, or since, been in the employ or acted as the agent of defendant, but at such time had been and was employed by Donthit, and Donthit only, to operate the car, which employment was given some time after Donthit had purchased the car from defendant in September before the accident in December. There is not a line in the record before us (and the bill of exceptions purports to set out all the evidence) to contradict any of this testimony, or either of these witnesses, except the testimony of plaintiff’s witness Hawkins, who when called by plaintiff to testify in rebuttal, swore that he knew the said chauffeur (Charlie McConnell) who operated the Stevens-Duryea car mentioned, and that on one occasion, “a little before Christmas” (1912), when witness “was coming from home and was walking through a short cut,” he met “Charlie about Twenty-Third and A. He,” continued the witness, “had just made a trip over in that part of town, and I rode back to town with him. I knew Charlie and got in the car and rode back with him. I don’t remember how we came to bring this subject up— just talking. He told me — I don’t remember just exact-Jy bow it came around, but I remember I was walking, but I remember be was running a car, and I aslted bim if be bad bought tbe car, or sometbing like that, and be told me be hadn’t bought the car; that be was running it on halves. I knew tbe car; knew it when Mr. Patterson (defendant) first bought it. I remembered it, and asked if it wasn’t tbe car Mr. Patterson bad, and be said it was. He said be was running on halves with Mr. Patterson. He didn’t state that he was running tbe car on halves with Mr. Douthit. I am positive of that.”

Granting or assuming as true every word this witness for plaintiff swore, and that defendant’s witness McConnell made tbe statement testified to out of court, which was contradictory to Avbat be swore in court, tbe only effect and purpose of tbe proof of tbe making of such contradictory statement was merely to impeach tbe witness McConnell himself, with tbe view of destroying .his testimony before tbe jury, and was not to afford and did not afford any affirmative evidence whatever against tbe defendant that tbe Stevens-Duryea car Avas bis at tbe time of tbe accident, and that McConnell Avas then running it for bim on halves. McConnell’s unsAvorn state: nient, made outside of court, to the contrary — even if the jury believed be made such statement to plaintiff’s said witness Hawkins — was purely hearsay evidence, so far as defendant Avas concerned, and Avas inadmissible, except for one purpose, and could not have been properly admitted, except for one purpose, and that was to discredit tbe testimony of McConnell. With McConnell’s testimony eliminated entirely, there remained, as-seen, tbe testimony of defendant, defendant’s chauffeur, and Douthit, which was in no way impeached, to tbe effect that McConnell was not and never bad been in tbe employ of defendant or acted as bis agent, and that the Stevens-Duryea car was not tbe property of defendant at tbe time of tbe accident.

The only evidence for plaintiff, npon whom was the burden of proof, that tended in the least to establish the ownership in defendant of the Stevens-Duryea car at the time of the accident, and the consequent inference that the chauffeur who was then operating it ivas his agent or in his employ, was the presumption that title and ownership of property once shown to exist is presumed to continue (22 Am. & Eng. Ency. Law, 1242) ; but in this case the very witnesses — defendant’s witnesses — by whom only it was shown that the title and ownership of the Stevens-Duryea car was once in defendant, testified, as pointed out, that such title and ownership had been parted with by defendant in September before the accident occurred in December. However considered, therefore, ive are clear in the conclusion that the lower court should have granted defendant’s motion for a new trial, and the judgment of said court is consequently reversed to the end that such new trial may be had.

Reversed and remanded.