1 Div. 348.
June 11, 1925.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Inge Bates, of Mobile, for appellant.
Statements made by one in possession of personal property explanatory of his possession are admissible in evidence as res gestæ of such possession. Wright v. Smith, 66 Ala. 514; Roberts, etc., Co. v. Ringemann, 145 Ala. 678, 40 So. 81. Acts of the donor and donee subsequent to an alleged gift, showing the claim of title by the donee and its recognition by the donor, are admissible as part of the res gestæ. Bragg v. Massie's Adm'r, 38 Ala. 89, 79 Am. Dec. 82. Likewise declarations of the donor made previous to the consummation of the gift. Gillespie's Adm'r v. Burleson, 28 Ala. 551. The owner of an automobile is not responsible for the act of her adult daughter while she was driving it, unless the daughter was the agent or servant, express or implied, of the mother, and the relation of parent and daughter does not of itself alone establish agency. Erlich v. Heis, 193 Ala. 669, 69 So. 530; Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87; Armstrong v. Sellers, 182 Ala. 582, 62 So. 28; Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380; Doran v. Thomsen, 76 N.J. Law, 754, 71 A. 296, 19 L.R.A. (N.S.) 335, 131 Am. St. Rep. 677; Heissenbuttel v. Meagher, 162 App. Div. 752, 147 N.Y. S. 1087. The owner of an automobile is not legally liable for damages inflicted in its operation, unless the driver at the time of the accident was acting as the agent or servant of the owner of the car and within the line and scope of his agency or employment. Powers v. Williamson, 189 Ala. 600, 66 So. 585; Atkins v. Points, 148 La. 958, 88 So. 231; Valley v. Clay, 151 La. 710, 92 So. 308; Marullo v. St. Pasteur, 144 La. 926, 81 So. 403; Dempsey v. Frazier, 119 Miss. 1, 80 So. 341; Beville v. Taylor, 202 Ala. 305, 80 So. 370. Where there is conflict in the evidence, so that the general affirmative charge should not be given, it is still the duty of the court to grant a new trial, where the jury made a wrong decision. Gilchrist-Fordney Co. v. Bearry, 210 Ala. 472, 98 So. 478.
Smiths, Young, Leigh Johnston, of Mobile, for appellee.
Statements as to title or ownership of the car were not admissible, unless made at the time the maker was in possession. McBride v. Thompson, 8 Ala. 650; Cohn Lbr. Co. v. Robbins, 159 Ala. 289, 48 So. 853; Hadden v. Powell, 17 Ala. 314. The statement of Mrs. Feore prior to the gift of the car to her daughter was hearsay. McAdams v. Beard Henderson, 34 Ala. 478. The oral charge was a correct statement of law. Penticost v. Massey, 201 Ala. 261, 77 So. 675. Charge 1, given for plaintiff, was correct. Erlich v. Heis, 193 Ala. 669, 69 So. 530; Hudgens v. Boles, 208 Ala. 67, 93 So. 694; Wedge v. Gapinski, 177 Wis. 471, 188 N.W. 476; Houseman v. Karicofe, 201 Mich. 420, 167 N.W. 964; Benton v. Regeser, 20 Ariz. 273, 179 P. 966. Charges 2 and 3, given for plaintiff, correctly state the law. Code 1923, § 6896. Likewise charge 4. Jones v. Strickland, 201 Ala. 138, 77 So. 562. Charges 18, 20, 21, 66, 70, and 72, refused to defendant, are defective. Jones v. Strickland, supra. Likewise charge 19. Erlich v. Heis, 193 Ala. 669, 69 So. 530; C. of G. v. Bagley, 173 Ala. 611, 55 So. 894; McCary v. A. G. S., 182 Ala. 597, 62 So. 18.
The action is by appellee for personal injuries suffered in a collision between two automobiles at the intersection of Conti and Bayou streets in the city of Mobile. The car for the operation of which appellant was held responsible was being driven by her daughter Esther south on Bayou street; appellee was a guest in the other car driven by Miss Mott east on Conti street. By an ordinance of the city cars moving east or west have the right of way over cars moving north or south at street intersections. There can be no doubt that the question of negligence involved was a question for the jury. The issue most actively litigated is whether defendant, Mrs. Feore, should be held to answer for the negligence of her daughter on the principle of respondeat superior, and this issue is presented by rulings on questions of evidence, exceptions to parts of the oral charge, and special instructions in writing given and refused. We have found no better way to treat these questions than to state them seriatim as they appear in the assignments of error.
The court did not sustain an objection to defendant's question on cross-examination to the witness Spencer, "Do you know whose car it was?" (referring to the car driven by defendant's daughter), as the first assignment of error assumes. Nor was any harm done by the court's exclusion of the answer which was to the effect that the witness knew only what Esther had told him, what Esther told him remaining undisclosed, nor was it asked for.
There was no error in sustaining plaintiff's objection to defendant's further question to the same witness, "Did she" — meaning Esther — "make any statement to you after the accident?" Even though we assume that the witness would have repeated a statement by Esther that she owned the car she was driving — the disputed ownership of which appears to have been the overshadowing issue in the cause — the answer, as affecting the liability of defendant, was nothing better than hearsay. Barfield v. Evans, 187 Ala. 589, 65 So. 928. Esther's statement, whatever it may have been, could not have been made at the time of the accident, and so the demand for its admission justified on the ground that it was of the class of spontaneous exclamations admissible without the guaranty of an oath, for the witness, who was asked to repeat it, was not there to hear what may have been said at that time.
The ruling sustaining an objection to defendant's question on direct examination to her witness Mrs. White cannot be held for error. The question was: "Did you ever, prior to the accident, hear Mrs. Feore make any statement as to whose car it was?" The objection was general, and on appeal the ruling must be sustained, if there was any good reason whatever why the testimony sought by the question should have been excluded. A self-disserving statement by defendant at a time when there was no reason to anticipate trouble would have been competent and relevant without regard to its connection with possession or other concrete act of ownership. Barfield v. Evans, supra. If, however, defendant's statement as it would have been reported by the witness, was that she owned the car, defendant suffered no prejudice by its rejection. In these circumstances, to fasten error upon the trial court it seems that defendant should have stated to the court the nature of the answer she expected the witness to make. Burgess v. Am. Mtg. Co., 115 Ala. 473, 22 So. 282; Mobile Life Ins. Co. v. Pruett, 74 Ala. 487.
Authorities sustain the proposition that defendant was entitled to have the answer of her witness, "Well, Mrs. Feore told me she was going to give her" — meaning her daughter Esther — "a car." The title to the car was not directly involved. No judgment was to be rendered affecting the title to the car. But the ownership of the car was a circumstance relevant to the question whether the driver, Miss Esther, was acting at the time of the accident as the servant or agent of defendant or upon her own initiative, and every indication afforded by the record points to the conclusion that this question of title was decisive of the related question of responsibility for the accident. The declaration of the alleged donor that she intended to give her daughter a car, made at a time when no motive for misstatement appeared, should have been admitted in evidence. Powell v. Olds, 9 Ala. 861; Gillespies' Adm'r v. Burleson, 28 Ala. 562. We do not find the authority of these cases intentionally or necessarily shaken by the decision in McAdams v. Beard, 34 Ala. 478. On the contrary, their authority is expressly recognized. There is a typographical error somewhere in the report of that case, and that may account for the fact that it is cited as limiting the effect of the previous cases. Our opinion is that they are all in harmony, and establish a principle according to which this answer of the witness White should have been allowed to remain with the jury. Nor do we find that at any other place defendant had the benefit of this witness' testimony to the same fact.
Defendant's sworn application — at least it purported to be her sworn application — to the judge of probate for a certificate of ownership of the car driven by her daughter at the time of the accident, in which application she stated that she had purchased or acquired the car previous to the accident, and the questions propounded in connection therewith, were properly allowed to go to the jury for what they were worth. That was about a year after the accident, but the statements made by defendant in the affidavit and in connection therewith tended to contradict her previous testimony, and were therefore relevant and competent.
The exceptions to the court's oral charge, made the subject of the thirteenth, fourteenth, and fifteenth assignments of error, were not well taken. The trial court did not instruct the jury that defendant "could be liable under the facts of this case if she did not own the car," as the brief for appellant assumes. As we read the record, the effort of the court was to instruct the jury to the effect that, while ownership of the car was a circumstance to be considered, it was not conclusive either way, and in this the court was entirely right.
The court also instructed the jury without error, as shown by assignments sixteenth to nineteenth, both inclusive. The language of the court, as shown by these excerpts from the oral charge, was employed while instructing the jury that the fact that Esther Feore was the daughter of defendant and lived under her mother's roof and as a member of her family might be considered in determining whether she acted as the agent or employee of her mother on the occasion in question. In the context the court further informed the jury, in substance, that the issues of fact referred to in these assignments, thirteenth to nineteenth, were to be determined by the jury from the evidence in the cause. While the verdict of the jury may have been based upon a misapprehension of the rules of law and justice involved in the rule of respondeat superior — as applied to the facts of this case, we apprehend, a matter of no small difficulty — we do not find that the court in the matters referred to committed error. Perhaps, also, the court, when it advised the jury, as it did in effect, that Esther was acting as the agent or employee of defendant at the time of the accident, if at that time she was carrying out the instructions of her mother, express or implied, explained the theory of respondeat superior as fully as the emergency demanded. At any rate, if defendant apprehended prejudice in this last respect, the proper recourse was to request additional instructions.
Charge 1, given at the request of plaintiff, is, for one thing, open to criticism for its use of the word "instance." We command, or instruct in the sense of command, our servants or agents. "Instance" does not imply the same degree of obligation to obey. Esther was of full age, for aught appearing, legally her own master, though financially dependent upon her mother. She had just taken her younger sister to school, and was returning home in her own way and according to her own pleasure. It may be that the jury could have inferred a command in some sort from her mother to carry her sister to school — something more than a mere acquiescence in what she did — but the idea that she was acting under the instruction of her mother, express or implied, that she was engaged in the execution of her mother's will rather than her own, should not have been minimized or left to rest in a word which in this connection is unusual and ranges in meaning from casual suggestion to earnest solicitation. Moreover, the charge invaded the province of the jury, in that it advised them that, on the facts hypothesized, they ought to find a verdict for the plaintiff. The facts hypothesized afforded ground upon which the jury might have based a conclusion in favor of plaintiff; but the inference was for them, whereas the charge undertook to instruct them what inference they should draw.
Charge 2, the court thinks, is involved and misleading, and might well have been refused.
Charges 3 and 4, given to plaintiff, asserted correct propositions of law.
A number of special charges were refused to defendant. We think charge 19, thus refused, should have been given. It seemed to be necessary to the defense, and proper for a more complete statement of the law, to get the idea of this charge before the jury. The charge was not rendered objectionable by the word "merely." In view of some of our decisions (Erlich v. Heis. 193 Ala. 669, 69 So. 530; Hudgens v. Boles, 208 Ala. 67, 93 So. 694) the use of that or some equivalent term was necessary. Without it the charge would have been condemned, because it did not exclude the notion that Esther Feore might have been operating the car on her mother's business and for her own pleasure at the same time. Charge 52 is condemned on this ground. Nor can it be condemned on the ground that "the daughter's own pleasure" may have been understood to mean the pleasure of the younger daughter whom Esther had taken to school. Very clearly the charge refers to Esther's pleasure; nor because it failed to specify the time and place of the accident. The only fair interpretation of the charge is that it refers to the status and relation of defendant and her daughter Esther at the time and place of the accident. If it were necessary in framing instructions for the information and guidance of juries to exclude every possible conclusion of this sort, the privilege of requesting special charges on points not perhaps adequately covered by the court's oral instructions would be quite valueless. Fairly construed, as it should be, this charge stated a correct proposition of law, applicable to the case developed by the evidence, and should have been given. And so with reference to charges 21 and 72. Charge 68 is in effect merely a repetition of 19.
Charges like 18, 20, 66, and 70 were objectionable by reason of the use of the phrase "in furtherance of defendant's business" or the like. There was no physical impossibility that Esther may have been operating the automobile as the agent or servant of defendant and within the scope of her employment — assuming for the argument she was an agent or employee — and yet not in furtherance of her mother's business. This idea is elaborated in Jones v. Strickland, 201 Ala. 138, 77 So. 562, to which we refer. And that reference will afford ground for condemning charges B, C, and D, requested by defendant.
The court thinks that defendant's charges E and F were refused without error as having a tendency to lead the jury to conclude that defendant, however negligent her agent (if agent she had) may have been, was not to be held liable, if the negligence of the driver of the car in which plaintiff was riding contributed to plaintiff's injury. Charges of this character in cases of this kind — cases in which responsibility for the accident may be disputed between two agents acting independently of each other — have been condemned. Alabama Wire Steel Co. v. Thompson, 166 Ala. 468, 52 So. 75; Frierson v. Frazier, 142 Ala. 232, 37 So. 825; Age-Herald Pub. Co. v. Waterman, 188 Ala. 291, 66 So. 16, Ann. Cas. 1916E, 900; Johnson v. Louisville Nashville R. Co., 203 Ala. 86, 82 So. 100.
Two or three other charges requested by defendant were covered by charges given at her request or were argumentative, and were properly refused. The court has considered the general affirmative charge requested by defendant and urged upon the court as the proper solution of this case. The opinion prevails that there was evidence enough to take the question of defendant's responsibility to the jury, and that, in view of another trial, discussion of the considerations conducing to one conclusion or the other were better pretermitted.
Other questions need not be considered at this time. For the errors pointed out, the judgment will be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.