Plaintiff, Betty Jean Stanley, appeals from a judgment for the defendant following a verdict directed by the trial court in favor of defendant.
The complaint as amended alleges that plaintiff "* * * was a guest passenger in a vehicle owned and operated by Defendant's intestate and which said vehicle was being driven at said time * * * on a public highway in Alabama, * * * the Defendant's intestate did wantonly injure the Plaintiff by driving her said automobile at a wantonly excessive rate of speed and wantonly causing, allowing or permitting the said vehicle to turn over on said road several times, and as a direct and proximate cause of said willfulness and wantonness the Plaintiff was willfully and wantonly injured in this: (injuries are here catalogued)."
The plaintiff undertook to prove her allegation that defendant's intestate was driving the vehicle at the time by questions to plaintiff as follows: "Have you ever driven this automobile that was involved in the accident?" and, "Who was in the automobile with you?"
The trial court sustained objections to these questions presumably on the ground that the plaintiff was disqualified to answer because of § 433, Title 7, Code 1940, often referred to as the "dead man's statute," which reads as follows:
As said in Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63 (3, 4), this section applies, among other conditions, when (1) the witness has a pecuniary interest in the result of the suit, and (2) the deceased acted in a representative relation to the party against whom the evidence is offered, and (3) he testifies to a transaction with the deceased. The facts in the case at bar show the existence of (1) and there is no contention that (2) is involved. The question is whether the allegations of the complaint, if so, show a transaction with deceased.
An application of this statutory exclusion was made in the case of Southern Natural Gas Co. v. Davidson, supra, but denied in the case of Gibson v. McDonald, Admr., 265 Ala. 426, 91 So.2d 679. In this latter case, this court summarized the situation by observing that there was an automobile accident at a street intersection in Birmingham, in the early hours of January 28, 1953, to which there were no eyewitnesses except the drivers of the two cars, both of whom were killed, and Ruby Gibson (appellant), who was riding as a guest in the Buick car driven by Josephus Perry. The other vehicle was driven by one Fortenberry, intestate of defendant.
In the Gibson case, we observed: "* * * To put it another way, does the testimony sought to be introduced fall within the category of testimony `as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding?'" (265 Ala. 428, 91 So.2d 681).
We said in the Davidson case, supra:
Adverting again to the case of Gibson v. McDonald, supra, decided by this court since the Davidson case, supra, we made some distinctions and observations which we think are pertinent and have application to the case at bar.
Thereupon, we adverted, with approval, to the case of Seligman v. Hammond (Orth), 205 Wis. 199, 236 N.W. 115, 117, wherefrom we quoted:
We also quoted with approval from the case of Krantz v. Krantz, 211 Wis. 249, 248 N.W. 155, 157, as follows:
Again quoting from Gibson v. McDonald, supra, we said:
If the plaintiff was only a guest or passenger in the automobile, was not exercising any supervision or control over what the driver did or failed to do in the operation of the car, was free from any active fault in connection with such operation, and took no part in the occurrence other than to be present in the car as a guest or passenger when the accident occurred, we think she was in a situation factually parallel to the plaintiff in the Krantz case, supra, and should be permitted to testify that Mrs. Shores was driving at the time of the accident, and to answer the aforequoted questions to her, which are negative but of like import. Also she should be permitted to testify to facts and circumstances regarding the accident, the driver's movements and actions in operating and controlling the automobile, all within her observation and knowledge, but not to statements by or conversations with her.
If it should appear, however, from the evidence without dispute that plaintiff was not a mere guest or passenger, or if either, she did exercise supervision or control as outlined above, or was not free from active fault in connection with such operation, and took some part as a participant in the occurrence, the trial judge should exclude from the jury on motion the evidence of the witness so admitted.
If such facts and circumstances relate to the participation vel non of the plaintiff in and about the supervision or the operation of the automobile, or as to plaintiff's status as a guest or passenger, and the jury is reasonably satisfied from the evidence that the plaintiff did supervise or control the operation of the car, or that plaintiff's status was not that of a mere guest or passenger, then the court should instruct them to disregard such testimony of the plaintiff, and, if there is no other admissible testimony as to the identity of the driver, to return a verdict for the defendant.
We held in Qualls v. Monroe County Bank, 229 Ala. 315, 156 So. 846(2), that both negative and affirmative testimony are within the rule prohibiting a witness from testifying as to statements or transactions with a decedent whose estate is interested in the result of a suit. The questions propounded to the witness in the case at bar sought negative testimony that in our opinion was not precluded by the "dead man's statute." The court committed reversible error in sustaining objections thereto.
Mrs. Robert Hagel, a witness for plaintiff, testified that on September 27, 1961, she heard a loud crash about 2:00 or 3:00 o'clock in the morning near her home; that she ran outside immediately, where she saw a wrecked car and two women, one of whom was lying in the middle of the road and the other (plaintiff) in the ditch on the grass; that she ran back to her home, called the telephone operator, and told her to notify the police. In just a few minutes Officer Osburn arrived, followed shortly by an ambulance. She also testified that there was a warning or blinker light in operation close to the scene of the accident. Also she stated that she went immediately to the scene of the wreck after the crash, and that she saw no one there other than the two women involved in the wreck until the officer and the ambulance arrived.
Frank Osburn, a witness for plaintiff, testified that he was at the time Assistant Chief of Police of Foley, and had served as police officer for sixteen years. We will not detail the training and experience which the witness testified he had had with respect to investigating automobile accidents,
The witness stated that at the time of the accident there were present on the highway at the scene of the accident two thirty-mile-an-hour speed zone signs, a horizontal S curve sign, and two slow signs on the right hand side of the blacktop; and also a "reduce speed" sign; that the character of the road some 700 feet towards Elberta to the place where he found the automobile was on a rise; that it was an S curve for a distance of some 700 feet.
He also testified that when he arrived at the scene of the accident he found a 1961 Comet automobile in the left lane of the road at the west end of the curve; that the car blocked the right lane going east. He also described the condition of the Comet car at the scene of the accident.
He further observed that he found skid marks leading east to west 657 feet that lead up to the place where he found the wrecked car; also that the skid marks started 632 feet "back here coming into the curve in here," Also he stated that he found "debris from the car" scattered all over this lane, to where the car stopped on the blacktop.
The witness then testified that when he arrived at the scene three ladies were present—Mrs. Hagel, the plaintiff, and Evelyn Shores; that Mrs. Shores was on the east side of the 1961 Comet on the driver's side right even—her feet right even with the door—lying on the blacktop; she was completely out of the automobile with her head close to the center line of the blacktop. Mrs. Stanley was down in the ditch west of the car. Both were injured. Also he testified that he found some lady's shoes under the accelerator of the Comet car and that Mrs. Stanley had on her shoes.
We think under the facts and circumstances here presented that the witness Osburn should have been allowed to give his judgment as to the speed of the automobile at the time of the accident. The record is not clear to us on what grounds the court sustained objection thereto. There is evidence as to lengthy skid marks (432 feet) made before the automobile presumably turned over; that was no inference or evidence that the car hit a moving object, so as to make it "behave in a manner which seemingly defies all laws of physics." Mobile City Lines v. Alexander, 249 Ala. 107, 112, 30 So.2d 4, 8; Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167. We hold the rule enunciated in Jackson v. Vaughn, 204 Ala. 543, 86 So. 469(3), here applies. It sustains the principle that one
The trial court admitted in evidence, over the objection of defendant, a copy of a license tag receipt issued to Mrs. George P. Shores for a 1961 two-door Comet, bearing license tag No. 5-1608. This copy was duly certified by the Probate Judge of Baldwin County as a full, true and correct copy of the 1962 License Tag Receipt No. 5-1608 as it appears of record in his office.
This license receipt copy, when properly shown that the licensee and Evelyn Shores, the decedent, were one and the same person, was admissible in evidence, and created a rebuttable presumption that Mrs. Shores was the owner of the Comet car involved in the wreck. Cox v. Roberts, 248 Ala. 372, 27 So.2d 617(3); Shipp et al. v. Davis, 25 Ala.App. 104, 141 So. 366; Ford v. Hankins, 209 Ala. 202, 96 So. 349(1).
Appellant contends that the rebuttable presumption of ownership created by the issuance of a license tag receipt and tag to the decedent, Mrs. Shores, gives birth to a rebuttable presumption that she was driving the automobile at the time of the accident. Appellee contends that no such presumption obtains because it would be contrary to the rule that an inference cannot be predicated on another inference.
The Alabama rule is that where a driver of an automobile is involved in an accident, a rebuttable presumption of agency exists between him and the owner of the car on proof of an administrative presumption of ownership or other competent proof of such ownership. It is further proof that such agent was acting within the line and scope of his authority, but subject to rebuttal. Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345.
This court being committed to the rule that a rebuttable presumption of agency exists between the driver and the owner of the vehicle involved in an accident on proof that defendant's name appears on the vehicle, or that the vehicle is licensed or registered for a license plate in his name, we think it logically follows, and we so hold, that proof of such ownership also raises a presumption, in automobile injury cases, that the machine was at the time of the accident, the owner being then and there present, under the owner's control or was being driven by him, and the burden of rebutting this presumption passes to such owner. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804(9); Kavale v. Morton Salt Co., 329 Ill. 445, 160 N.E. 752; Watt v. Yellow Cab Co. et al., 347 Ill.App. 307, 106 N.E.2d 760; Rose v. Ruan Transport Corp., (7 Cir.), 214 F.2d 583(1, 2); 61 C.J.S. Motor Vehicles § 511(5)b (b), p. 218, and cases cited; Renner v. Pennsylvania R. Co., Ohio App., 103 N.E.2d 832(7); Rodney v. Staman, 371 Pa. 1, 89 A.2d 313(6, 7), 32 A.L.R. 2d 976.
We conclude the evidence as to the physical condition of the road at the time, the distance the car skidded, and its physical condition after it came to rest, and the presence of warning signs on the side of the road, together with the estimated speed of the car at the time, would be admissible for the jury to determine whether or not the driver of the car was guilty of wantonness in its operation as charged in the complaint. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77(14, 15).
We pretermit any discussion of the averment that defendant's intestate willfully and wantonly injured plaintiff. When such averment is in the conjunctive, as here, proof of willfulness or design or purpose is necessary. Dickey v. Russell, 268 Ala. 267, 105 So.2d 649(3).
We cannot say what the evidence of plaintiff would have been had she been allowed to testify as to the operation of the
The trial court committed reversible error as herein observed, and also in directing the jury to return a verdict for the defendant. It is ordered that the judgment be reversed and the cause remanded for further proceedings.
The foregoing opinion was prepared by B. W. SIMMONS, Supernumerary Circuit Judge, and was adopted by this court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN, COLEMAN and HARWOOD, JJ., concur.