Opinion
6 Div. 926.
November 27, 1919.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
J. Q. Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for appellant.
The court fell into error in placing the burden on the state to show that the seller could not have obtained notice of the use to which the car was put by the exercise of reasonable diligence. This must be averred in the claim and proven by a claimant. Baldwin v. Casella, 7 Law Reports, 325; 1 Moody Malakin, 433.
Nenian L. Steele, of Birmingham, for appellee.
No brief reached the Reporter.
The question is: If a dealer disposes of an automobile on a conditional sale contract for the purpose of being operated as a taxicab by the purchaser or another, and in such operation it is used for the illegal transportation of liquors and is seized while so used, can the seller assert a valid claim thereto and prevent its forfeiture to the state without averring and proving that he did everything reasonably possible to prevent the car's use in violation of the statute, or that by the exercise of reasonable diligence he could not have discovered and prevented the illegal use of the car?
This court has construed certain of the provisions of section 13 of the Shaw Prohibition Act (Gen. Acts 1919, pp. 6, 13) in State v. Hughes, 82 So. 104, and Maples v. State, 82 So. 183. might employ; that pursuant to said transaction said John Young placed said automobile for taxicab service in the city of Birmingham and employed one Hubert Harrison as a chauffeur to operate the same; that on, to wit, the 26th day of February, 1919, the said Hubert Harrison was operating said automobile in that city as a taxicab for said John Young and as a chauffeur for him; that on, to wit, said date, said automobile, in the charge and control of said John Young and the said Hubert Harrison, was standing at 1812 Fourth avenue, in the city of Birmingham, at the Pan Taxi Company's place of business when said company received a call over the telephone to send a taxicab to a cafe opposite the terminal station in the city of Birmingham, for the purpose of transporting two passengers to some point in said city; that the Pan Taxicab Company is a trade-name under which the said John Young operated a taxicab business in the city of Birmingham; that pursuant to said call over the telephone the said Hubert Harrison was directed and authorized by the said John Young to proceed with said automobile to said cafe, where he procured two passengers who informed him that they desired to be carried to 2103 Sixth avenue, in the city of Birmingham; that at said time said passengers had three suit cases which were closed; that pursuant to their request they were accepted as passengers together with their baggage, consisting of three suit cases, and were transported in said automobile to 2103 Sixth avenue, and on approaching the number in question said passengers directed Hubert Harrison to drive to the rear of said place, which he did, and stopped for the purpose of allowing the passengers to alight; that upon said passengers alighting they proceeded to unload the said baggage from said automobile and passed same through the back fence of the rear of No. 2103 Sixth avenue, and as they were in this act a constable in that county seized said suit cases, said automobile, and one of said passengers, the other passenger having escaped. The suit cases in question contained a quantity of prohibited liquors and beverages which had been transported in said automobile from the cafe to the point of seizure.
Ante, p. 90.
It is further admitted as a fact:
That "said John Young and said Denegre Car Truck Company, nor any of its officers or agents, did not have any notice or knowledge of the fact that said suit cases contained prohibited liquors or beverages at any time prior to the time they were seized by the constable as aforesaid; that at the time said passengers were accepted for transportation and said suit cases loaded in said automobile the same were locked and the contents thereof were not exhibited to the chauffeur, the said Hubert Harrison, but he knew when said passengers were accepted for carriage that the suit cases contained prohibited liquors and that on an occasion shortly previous to this time the said Hubert Harrison had knowingly transported liquors in violation of law, in this same automobile, in the city of Birmingham, Ala., for one of the passengers, which fact was not known to the said John Young or the Denegre Car Truck Company, or any of its officers or agents."
It is further admitted:
That the said constable, J. E. Matlock, did then and there seize the said automobile which is now in the custody of this court and subject to its orders and decrees; "that since the delivery of the said automobile by the said Denegre Car Truck Company to the said John Young, on to wit, the 7th day of January, 1919, the said John Young and the said Denegre Car Truck Company, nor any officer nor agent thereof, have not done anything to investigate the way and manner in which the automobile was being operated nor the character of the persons operating the same, except that it and they knew that it was being operated for hire as a public taxicab in the city of Birmingham, Ala.;" that there is now due and payable on said sale contract the sum of $1,162.52; that "said John Young was not in default of any payment due on said automobile at the time the prohibited liquors were transported therein; that said automobile has not been in the possession of or under the control of the said Denegre Car Truck Company, or any of its officers or agents, since it was delivered to the said John Young on, to wit, the 7th day of January, 1919."
We are of opinion that the pleading of intervener duly and properly sets up its superior title or claim, but that the burden of proof declared by the statute has not been discharged by intervener. This results in a reversal of the judgment of the circuit court in equity.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.