Patterson v. Milligan

BROWN, J.

(dissenting). — The plaintiff (appellee here) brought this action to recover damages for injuries inflicted upon him as a result of being stricken by an automobile while he Avas riding along one of the public streets of the city of Birmingham on a bicycle. At the conclusion of the evidence, the court refused the affirmative charge requested by the defendant, submitted the case to the jury, and the issues were determined by the jury in favor of the plaintiff. After a return of the verdict, the defendant made motion for a neAAr trial, Avhich was overruled. These two rulings of the court present the only questions that were treated on the original consideration of the case; the court holding in effect that the defendant was entitled to the affirmative charge, and that the trial court committed reversible error in refusing the defendant’s motion for a new trial.

*334The writer did not participate in the original consideration of the case, but on consideration thereof, on the application for rehearing, is not able to agree to the conclusions reached in the original opinion for reasons which are here set down.

By a general act approved April 22, 1911 (Gen. Acts 1911, pp. 634-650), the Legislature provided for the licensing of motor vehicles and imposed upon owners thereof certain duties with reference thereto as a prerequisite to their use on “public highways,” and defined a public highway, as therein used, thus:

“The term ‘public highway’ shall include any highway, country road, state road, public street, avenue, alley, park, parkway or public place in any county, city, town or village except in a speedway, which may have been or may be expressly set apart by law for the exclusive use of horses and like carriages.”

Some of the duties imposed by the act on owners of such vehicles, before they can be used upon public highways, are: That such owner must file in the office of the Secretary of State a verified application for registration of such vehicle, giving a brief description thereof, including the name of the manufacturer, the style, type, and factory number of such vehicle, the character of the motor power, the amount of motor poAver, and the insurable horse poAver, the name, residence, and business address of the owner, and the county in Avhich he resides. Upon receipt of this application, it is made the duty of the Secretary of State to register such motor vehicle according to such dscription, and, upon the payment of the fees provided for by said act, to assign to such vehicle a “distinctive number” and issue to the owner a certificate of registration. It is also made the duty of the Secretary of State to furnish to the probate judges of the several counties a full and accurate list of motor vehicles regis*335tered from tbeir respective counties, giving the “distinctive number” assigned to each motor vehicle, the name, residence, and business address of the owner. This list is filed by the probate judge and kept as a public record in his office, open to public inspection. Such registration is to be renewed annually on the 1st day of October of each year, upon the payment of the fees or tax provided for by this act. In case of a sale of such vehicle by the owner, it is made the duty of the purchaser, within ten days thereafter, to demand of the Secretary of State a certificate blank, and upon said blank such purchaser must furnish to the Secretary of State the name and business address of the previous OAvner, the number under Avhich such motor vehicle is registered, and the name, business address, and residence of such purchaser; and upon receipt of this certificate or application it is the duty of the Scretary of State to note in the registered books or index such change of ownership, and to notify the probate judge of the county where the owner and purchaser reside of such sale and the name of the purchaser, which he shall note on the list of register d vhicles received and kept by him on file in his office.

It is the duty of the owner registering such vehicle to procure, and of the Secretary of State to furnish, a number plate 4% inches wide and not more than 12 inches in length, in the upper left-hand corner of which shall be the word “Ala.,” and to the right of which there shall be the “distinctive number” assigned to the vehicle set forth in numerals 3 inches long, each stroke of which shall be at least one-half inch in width, the plate to be of a distinctive color or shade, shoAving marked contrast between the number plate and that of the numerals and letters thereon, and each OAvner of a registered car is entitled to tAvo of these plates, which must be displayed on the vehicle, and no other number must be displayed on such vehicle.

*336Section 18 of the act provides:

“Every motor vehicle, operated or driven upon the public highways of this state shall be provided with adequate brakes in good working order and sufficient to control such vehicle at all times when the same is in use and a suitable and adequate bell, born, or other device for signaling, and shall, during the period from one-half hour after sunset to one-half hour before sunrise display at least two lighted lamps on the front and one on the rear of such vehicle which shall also display a red light visible from the rear. The rays of such rear lamp shall shine upon the number plate carried on the rear of such vehicle in such manner as to render the numerals thereon visible at least fifty feet in the direction in which the motor vehicle is proceeding: Provided that the lamps on such vehicle need not be lighted when the vehicle is standing under the rays of a light and can be plainly seen. Every person operating or driving a motor vehicle on the public highways of this state, shall also, when approaching a cross road outside the limits of a city or incorporated village, sIoav down the speed of the same, and shall sound his bell, horn, or other device for signaling in such a manner as to give notice and warning of his approach.”

Section 19 of the act provides, among other things:

“In approaching or passing a car of a street railway which has been stopped to allow passengers to alight or ■embark, the operator of every motor vehicle shall slow ■down and if it be necessary for the safety of the public he shall bring said vehicle to a full stop. Upon approaching a pedestrian who is upon the traveled part of any highway and not upon a sidewalk and upon approaching ■an intersecting highway or a curve or a corner in a highway where the operator’s view is obstructed, every per1 son operating a motor vehicle shall slow down and give a *337timely signal with Ms bell, bom, or other device for signaling.”

And .section 21 provides: “No person shall operate a motor vehicle upon the public highways of this state recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property, or the life or limb of any person.”

The act then provides the minimum age limit for chauffeurs, provides for licensing them, and the keeping of a registration list of licensed chauffeurs, and prohibits the operation of a motor vehicle on the highways of the state by any person as a chauffeur, unless such person is licensed as required by the act.

It cannot be doubted that this statute is remedial in its nature, enacted in the interest of public safety, and should receive liberal construction to the end of suppressing the mischief at which it is directed, and in advancing the. remedy its purpose was to afford.—Blakeney v. Blakeney, 6 Port. 109, 30 Am. Dec. 574; Sprowl v. Lawrence, 33 Ala. 674; Dubose v. Dubose, 38 Ala. 241, 30 Am. Dec. 574; Steele v. Tutwiler, 68 Ala. 110; McKissack v. McClendon, 133 Ala. 560, 561, 32 South. 486; Endlich on Interpretation of Statutes, § 107. This rule of construction is stated by Black on Interpretation of LaAV thus:

“Remedial statutes are to be liberally construed with a view to effectuate the purpose of the Legislature; and if there be any doubt or ambiguity, that construction should be adopted which will best advance the remedy provided, and help to suppress the mischief against which it was aimed.” — Black on Interpretation of Law (Hornbook Series) pp. 307, 308.

The evil against which this statute is directed was the negligent operation of motor vehicles on public high*338ways, and, to the end of suppressing this evil, its design was to afford a means of identifying the owner of the vehicle by the “distinctive number” which the statute requires to be conspicuously displayed, the number being an index to the record where the name and residence of the OAvner may be found; and the presumption of law is that the person Avhose name is shoAAUi by this record is the owner'of the vehicle upon Avhich this number is displayed, and that it is operated under and by his authority. This presumption of law is, however, not a conclusive, but a disputable, one; but it carries more evidential force than a mere presumption of fact. A presumption of fact may be entirely overcome and destroyed by countervailing evidence, Avhich authorizes the court to declare, as a matter of law, that such presumption has been overcome; but not so with a presumption of laAV; although, as opposed to the presumption of law, the evidence may be undisputed, yet the court will accord to this presumption the force of producing a conflict in the evidence which must be determined by the jury.—Roman v. Lentz, 177 Ala. 71, 58 South. 438. Speaking of the distinction between a presumption of law and one of fact, Prof. Greenleaf says:

“They [presumptions if fact] depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect: That while those are reduced to fixed rules, and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind, Avithout the aid or control of any rule of law whatever.” — 1 Greenleaf on Evidence, § 44; Jones on Evidence (2d Ed.) §§ 10, 11,

*339Taking in view the purpose of the statute to afford the evidential means of .identifying the owner of such vehicle, the presumption of ownership arising from the number plate carried on the vehicle should be accorded such evidential force, under the facts of this case, as to necessitate the submission of the issues to the jury.— Roman v. Lentz, supra.

There is another phase of the evidence that justified the court in refusing the affirmative charge requested by the defendant. The evidence is undisputed that the automobile that struck the plaintiff carried the number 509; that the defendant Patterson on September 24, 1912, registered his car as an Olds, style 1913, factory No. 8195, 25 horse power gasoline motor, under that number and paid the fee of $12.50 therefor. The plaintiff testified on his examination in chief that after he was injured he went to the defendant’s office at the place of business of the Burnett Cigar Company; that he saw there an automobile with the number 509 on it; that he had a conversation with Patterson (the defendant) with reference to the accident, in which the defendant asked him who his attorney was, and plaintiff told him that it was Mr. Benson; and that he (defendant) suggested that they go up to see the lawyer, to which plaintiff assented. Defendant then invited plaintiff into his (defendant’s car), bearing the number 509, and got in with him, plaintiff thinking that they were going to see Mr. Denson; but instead of this they drove to the American Trust & Savings Bank, to the office of Mr. Anderson, attorney for the defendant, where he (as plaintiff expresses it) — “told me to talk to Mr. Anderson about the matter, and they asked me about the injuries, etc. They talked to me about the car that hit me and the man that struck me, and quizzed me in a general way. Mr. Anderson asked me about all he could think of concerning the case.”

*340On cross-examination be testified:

“Mr. Patterson did not ask me to come over to tbe store. I went over there to see him. He did not necessarily take me out and show me his automobile. He asked me when we walked out if that looked like the car that struck me. I told him the best I could tell it looked pretty much like the same car. It seemed to be painted about alike; but his car, the car at that time looked like it had been more polished up. If it was the same car, it looked a little newer. I didn’t tell him that it was not the same car that struck me. I didn’t tell him that was not the car that struck me. I told him that the number on the car was the same; 509 was the number that struck me; and 509 was the number on the car standing there in front of the store when I went to see Patterson. I told him the one that stood there looked newer, brighter —looked brighter. I didn’t say it was a newer car, but said it looked newer, brighter, cleaner. There was no distinguishing feature about it, except that I didn’t see on that car that day any tag for hire, and I did see one on the car that struck me. The car that struck me had a for-hire tag on it. I didn’t see any for-hire tag on Patterson’s car. I did not state to Patterson in Anderson’s office that the car I rode over to his office in was not the car that hit me. I swear positively that I did not state that it was not the car that hit me. You asked me if it was the same car. The best I remember, I told you if it was the same car it looked like it had been repainted, or looked brighter or cleaner. Mr. Patterson told me all the time that it was not his car that struck me, and told me all the time that he had nothing to do with the car that struck me. To explain, he told me that somebody else could have got his number and put it on that car. You said they could have done that. I did not tell Mr. Patterson on that occasion that I didn’t be*341lieve that it was bis car that struck me. Mr. Patterson denied tbe car being bis, and asked me to release tbe suit against him, and I told Mr. Patterson, if be could prove to me wbo tbe .car belonged to, I would release tbe suit. I didn’t want to be suing an innocent man.”

Tbis evidence, when considered in connection with tbe presumption arising from tbe fact that tbe car that struck plaintiff carried tbe number 509, and tbe further fact that tbe plaintiff’s car, referred to in tbe testimony as an Olds, also carried tbis number, was sufficient to carry tbe case to tbe jury; and it was for tbe jury to determine, on considering all tbe evidence, whether or not it was tbe plaintiff’s Oldsmobile or tbe Steven s-Duryea that collided with tbe plaintiff.

Tbis court has stated tbe rule in such cases, in Pantaze v. West, 7 Ala. App. 607, 61 South. 44, as follows:

“It is not for tbe court to pass upon tbe conflicting, probable, or reasonable inferences to be drawn from tbe evidence, nor to weigh or balance one inference that could be so drawn against another contra inference deduced from other testimony, and thus determine and pass upon these different and conflicting inferences afforded by tbe evidence for or against one or tbe other of tbe parties to tbe suit, for tbis, under our system, is exclusively tbe province of tbe jury. And as negligence and tbe failure to exercise due care and ordinary precaution, like any other fact, may be inferred from circumstances, tbe court would not have been justified in taking tbe case from the jury, unless, as a matter of law, no recovery could have -been bad in tbe case upon any view which could properly have been taken of tbe evidence and of tbe reasonable tendencies afforded by it. Tbe rule, as we have stated it, on tbis proposition, is settled beyond cavil to be tbe law in this state, in quite a large number of well-considered opinions.”—Smoot v. M. & M. *342Ry. Co., 67 Ala. 16; Culver, Adm’r., v. A. M. Ry. Co., 108 Ala. 330, 18 South. 827; M., J. & K. C. Ry. Co. v. Bromberg, 141 Ala. 258, 37 South. 395; B. R. L. & P. Co. v. Enslen, 144 Ala. 343, 39 South. 74; McCormack v. Lowe, 151 Ala. 313, 44 South. 47; Haden v. Troy, 155 Ala. 270, 46 South. 753; W. U. Telegraph Co. v. Louisell, 161 Ala. 231, 50 South. 87; B. R. L. & P. Co. v. Murphy, 2 Ala. App. 588, 56 South. 817; B. R. L. & P. Co. v. Camp, 2 Ala. App. 649, 57 South. 50; So. Ry. Co. v. Noah Ellis, 6 Ala. App. 441, 60 South. 407.

There is still another phase of the evidence that justifies the submission of the case to the jury and the refusal of the affirmative charge. In addition to the evidence above adverted to, the evidence is undisputed that at one time the Steven s-Duryea car, Avhioh, according to defendant’s theory, inflicted the injury on plaintiff, be-' longed to the defendant and was registered by him, under the act of the Legislature quoted in the first part of this opinion, in 1912; and although there was evidence showing, or tending to show, a sale of the Stevens-Dur-yea by the defendant to one Douthit, before the injury complained of, yet the evidence Avas undisputed that such sale was not reported as required by section 8 of this statute, and this, in connection with the other evidence adverted to, justified the submission of the case to the jury. — 22 Am. & Eng. Ency. Law, 1242; Jones on Evidence, § 58; Hollingsworth v. Walker, 98 Ala. 543, 13 South. 6.

The point most strenuously contested in the trial court Avas as to the identity of the-automobile that inflicted the injury, and of its ownership. In order to hold the defendant liable, it was necessary for the jury to reach the conclusion either that the car that inflicted the injury was the defendant’s Oldsmobile, carrying the number 509, or that the defendant owned the Stevens-*343Duryea car, and, as I have shown, there was some evidence tending to support either of these conclusions. The trial court in the exercise of the functions imposed upon him, as a judicial officer, deemed it sufficient to justitfy him in submitting the case to the jury and, after the jury had found the issues in favor of the plaintiff, to warrant him in refusing the defendant’s motion for a new trial.

While it must be conceded that the evidence offered by the defendant tended strongly to support the contrary view, and that the preponderance of the evidence is against the verdict, yet this is not sufficient to authorize this court to set the verdict aside. In support of this view, I quote from the decision of the Supreme Court in the case of Cobb v. Malone, 92 Ala. 633-635, 9 South. 739, 740: “The power to set aside the verdict has been generally regarded in this country as inherent in courts organized upon the principles of common law, though in some states it is regulated by statute, enumerating the grounds upon which a motion for a new trial may be made. The power is essential to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, .or of bias or prejudice, on the part of juries, which sometimes occurs. But, in exercising the power, the court should be careful not to infringe the right of trial by jury, and should bear in mind that it is their exclusive province to determine the credibility of witnesses, to weigh the .testimony, and find the facts. Being selected for their impartiality and qualifications to judge facts, and unanimity of opinion and conclusion being required, their verdicts are presumed to be correct. It has been said that no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence._ Hilliard on New Trials, 339. The power should be ex*344ercised only when it affirmatively appears that the substantial ends of justice require the examination of the facts by another jury. If these be the principles by which the trial court should be governed, they apply with much more force to the exercise of the power by an appellate court. When the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is thereby strengthened. He is selected because of his legal learning, sound judgment, and the confidence of the public in his impartiality, and the courage of his convictions of right and justice. He has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor, or convenient failure of memory, to avoid impeachment, or for other improper purpose. The appellate court, possessing none of these aids and advantages, and receiving the evidence on paper only, is less qualified to determine what evidence is unworthy of belief, or what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses. Doubtless in view of these considerations, the power to grant new trials, or to correct errors of the circuit or city court in granting or refusing to grant the same, is conferred by the statute upon this court in general terms; no rules, by which it shall be governed are prescribed, leaving the power to be exercised in accordance with well-recognized usages and rules in such cases, and in the mode in which, in the judgment of the court, the ends of justice will be best subserved. Fortunately we enjoy the experience of other appellate courts, which exercise the power to grant new trials with or without statutory authority. The rules by which the courts have been governed in the following states, respectively, are stated thus: In Arkansas : ‘The rule laid down by this court, and to which we *345will adhere, is that the verdict must not only be against the weight of the evidence, hut so much so as, at first blush, to shock our sense of justice and right.’—Drennan v. Brown, 10 Ark. 138. In Tennessee: ‘We adhere to and again announce the principle, as familiar from frequent repetition as it is obviously correct, that we will set aside, verdicts approved by the circuit court in those cases only where the weight of the testimony against the verdict greatly preponderates.’—Yarborough v. Abernathy, Meigs (Tenn). 413. In Georgia: ‘The court will, although with great carefulness, and only in cases of manifest and flagrant injustice, set aside a verdict when there is confessedly some evidence to sustain it.’—Ball v. Page, 4 Ga. 428 (48 Am. Dec. 235). In Mississippi: ‘To authorize the high court to reverse a judgment for mere error in the verdict which the court below refused to disturb, the error must be clear. Every presumption is to be indulged in favor of the verdict.’— Peck v. Thompson, 23 Miss. 367. In Minnesota: ‘But if upon a careful perusal of the testimony, and upon mature reflection, we feel satisfied that the preponderance of the evidence is manifestly and palpably in favor of the verdict, we should then deem it our duty to reverse an order granting a new trial.’—Hicks v. Stone, 13 Minn. 434 (Gil. 398). The foregoing extracts are made, not for the purpose of approval or. adoption of the rules announced therein, but to show the caution and rehic-tance with which appellate courts interfere to control the discretion of the trial court in granting or refusing new trials, and to aid us, by the result of their experience, to lay down a rule salutary and conservative, and at the same time carrying into effect the purposes of the statute. * * * When there is no evidence to support the verdict, it is clearly the duty of the court to grant a new trial; no court possessed of a proper sense *346of justice, and a due regard for a fair and impartial administration of the law, can afford to allow such a verdict to stand. But when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the court, as to the weight'of the testimony, or because it is against the mere preponderance of the evidence. • Comparing the analogous rules above stated and the rules established by other appellate courts, we deduce therefrom, and lay down as rules for the guidance of this court, that the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after, allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”—Cobb v. Malone, 92 Ala. 633, 9 South. 739.

In the case of Yolande Coal & Coke Co. v. Norwood, this court, speaking by de Graffenried, J., said: “The tenacity with which the Anglo-Saxon race has clung, through successive ages, to the system of trial by jury indicates that through that system the English-speaking’ people believe that justice, under the law, is usually attained. As the jury is the forum to which the law has committed the determination of questions arising out of disputed facts, and as the trial judge himself is present during the trial and has the opportunity of hearing the witnesses when they testify and of observing their demeanor upon the stand, it is but right that an appellate court, when there is some evidence to support the verdict, should not disturb the action of the trial court in refusing to grant a new trial, upon the ground that it was contrary to the evidence, or that the verdict was excessive, unless the preponderance of the evidence against *347the verdict is so strong that the appellate court can say that it was palpably wrong and unjust.”—Yolande Coal & Coke Co. v. Norwood, 4 Ala. App. 397, 58 South. 121.

After a careful consideration of the evidence in the record, and after allowing all reasonable presumption in favor of the ruling of the trial court and the correctness of the verdict, I am not able to say that the preponderance of the evidence is so decided as- to clearly convince me that the verdict is wrong and unjust.—Montgomery-Moore Mfg. Co. v. Leeth, 2 Ala. App. 324, 56 South. 770; Borden & Co. v. Vinegar Bend Lumber Co., 2 Ala. App. 354, 56 South. 775; M. & O. R. R. Co. v. Barber, 2 Ala. App. 509, 56 South. 858.