To entitle the plaintiff to recover against Tullis in this case, it was necessary for him to show, besides the negligence of Haltiwanger in the operation of Tullis' car, that Haltiwanger was acting therein as the agent of Tullis at the time of the collision with plaintiff's car.
The fact either of family relationship or of permitted use, or of both combined, did not furnish any basis for liability. 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; Beville v. Taylor, 202 Ala. 305, 80 So. 370; Bradley v. Ashworth,211 Ala. 395, 100 So. 663.
The plaintiff called the defendant Tullis as his witness, and relied upon his testimony to show the fact of Haltiwanger's agency; there being no other evidence on that issue.
The theory of plaintiff's counsel seems to be that, having shown by Tullis that he was the owner of the car, and that Haltiwanger was driving it with his implied consent, the presumption arises that Haltiwanger was the owner's agent, and that he was acting within the line and scope of his authority in the operation of the car at the time of the collision, and that these presumptions carried the issue to the jury, evidence to the contrary notwithstanding.
It is well settled that those presumptions do arise from proof of the defendant's ownership of the vehicle; but it is well settled also that they are prima facie presumptions merely, or, as they are sometimes called, administrative presumptions, based upon considerations of fairness and convenience in placing the burden of proof. They are not in themselves evidence, and in practice their effect is merely to impose upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment. If the evidence thereon is in conflict, or leads to doubtful inference only, the issue should go to the jury. If, however, the evidence, without dispute, rebuts the facts thus presumed, there is no issue for the jury, and the general affirmative charge should be given for the defendant on request. Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; s. c., 207 Ala. 709,91 So. 921; Massey v. Pentecost, 206 Ala. 411, 90 So. 868; Ætna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Rooks v. Swift Co.,210 Ala. 364, 98 So. 16; Freeman v. Southern, etc., Ins. Co.,210 Ala. 459, 98 So. 461.
In this case the testimony of Tullis is *Page 579 clear, undisputed, and conclusive to the effect that Haltiwanger was not working for him, and was not out on his business on the night of the accident, and that he did not know Haltiwanger was going to drive the car on that occasion. This conclusively rebuts the presumptions relied on, and required the giving of the general affirmative charge for Tullis, as requested by him in writing.
It results that the refusal of that charge was error, for which the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing.