## Facts

- Tillman A. Perdue, Jr., and Patricia Perdue were injured and their van was damaged when an automobile made a left turn in front of them.
- The automobile was owned by Eloise Smith and was being driven by Robert B. Mitchell, Jr., age 17; Smith was not in the car at the time of the collision.
- Smith, described as elderly and infirm, arranged for Mitchell to drive her from Montgomery to her brother’s home; they stopped at a farmers’ market for peaches.
- While Smith was inside the market, Mitchell drove off in Smith’s car without her and later collided with the Perdues’ van, leaving Smith stranded.
- Smith testified she attempted to have Mitchell arrested and reported the matter to juvenile authorities; she learned later that her car was totaled.
- The Perdues sued Mitchell and Smith for negligence-related damages, asserting Smith’s liability under vicarious liability (agency/permissive use) and negligent entrustment theories.
- Mitchell was served but did not appear; the trial court entered a $10,000 default judgment against him.
- On the morning of trial, the Perdues sought a continuance to secure Mitchell’s presence; the trial court denied the motion.
- At the close of the Perdues’ evidence, the trial court granted Smith a directed verdict; the Perdues appealed.

## Issues

1. Whether the trial court abused its discretion by denying a continuance sought to secure Mitchell’s presence at trial.
2. Whether the evidence permitted a reasonable inference that Mitchell was acting as Smith’s agent or with her permission at the time of the collision, requiring submission of vicarious liability to the jury.
3. Whether the Perdues presented sufficient evidence of Mitchell’s incompetence and Smith’s knowledge to submit negligent entrustment to the jury.

## Decision

- The Supreme Court of Alabama affirmed.
- The denial of a continuance was upheld because continuances are disfavored and the record did not show palpable or gross abuse of discretion, including inadequate diligence in securing Mitchell’s testimony.
- The directed verdict for Smith on vicarious liability was affirmed because the evidence did not support that Mitchell was operating the car with Smith’s permission or within the scope of any agency at the time of the collision.
- The directed verdict for Smith on negligent entrustment was affirmed because the Perdues offered no evidence that Mitchell was an incompetent driver or that Smith knew or should have known of any incompetence.

## Legal Principles

- A trial court’s denial of a continuance will be reversed only for palpable or gross abuse of discretion; lack of diligence in securing a witness supports denial.
- Ownership of a vehicle and prior permission to drive do not alone establish vicarious liability; the plaintiff must present evidence that, at the time of the tort, the driver acted with the owner’s permission and within the scope of an agency or purpose of the owner.
- Negligent entrustment requires proof of the driver’s incompetence and the owner’s actual or constructive knowledge of that incompetence; a single negligent act and the driver’s youth, without more, are insufficient.

## Conclusion

The court affirmed judgment for the vehicle owner because the plaintiffs failed to produce evidence that the driver was permissively acting as the owner’s agent at the time of the collision or that the owner negligently entrusted the car to an incompetent driver, and the denial of a continuance to locate the absent driver was not an abuse of discretion.


Perdue v. Mitchell, 373 So. 2d 650 (Ala. 1979)