Campbell v. Jackson

• Decision Date: 19 June 1952
• Docket Number: 8 Div. 633
• Citation: 257 Ala. 618,60 So.2d 252
• Parties: CAMPBELL et al. v. JACKSON.
• Court: Alabama Supreme Court

Page 252

60 So.2d 252

257 Ala. 618

CAMPBELL et al. v. JACKSON.

8 Div. 633.

Supreme Court of Alabama.

June 19, 1952.

Rehearing Denied Aug. 27, 1952.

F. W. Davies and Davies & Williams, Birmingham, for appellants campbell.

Brown, Scott & Dawson, Scottsboro, and Chas. J. Scott, Fort Payne, for appellants Mitchell.

H. T. Foster, Scottsboro, and H. G. Bailey, Boaz, for appellee.

These charges were given at plaintiff's request:

'3. The Court charges the jury the negligence of one obstructing highways with a standing automobile may concur with negligence of one driving a moving automobile, though acting independently as proximate cause of collision.

'B. The Court charges the jury that if you are reasonably satisfied from the evidence that the injury and death of plaintiff's son was the proximate consequence of the concurrent negligence of both the driver of the Campbell truck and the driver of the Mitchell truck, then your verdict should be for the plaintiff.'

This charge was refused to defendants Campbell:

'P. 3. I charge you, Gentlemen of the Jury, that even though you are reasonably satisfied from the evidence that the defendant Campbell's truck was parked illegally at the time and place complained of, you cannot find a verdict against the defendants Campbell and Thomas, unless you are further satisfied from the evidence that the illegal parking of the defendant's truck was the proximate cause of the injury complained of.'

SIMPSON, Justice.

The action was brought under the homicide act, Code 1940, Title 7, § 119, for the wrongful death of plaintiff's minor son, who was run over by the truck of one of the defendants as it undertook to pass the standing truck-trailer of the other defendant. The complaint counted upon the concurrent negligence of the several defendants.

The suit joined as defendants Emory Campbell, doing business as Campbell Cotton Company, and his agent, Fred Doyle Thomas, the owner and driver, respectively of a truck-trailer; and Sand Mountain Gin Company (a partnership composed of C. O. and A. G. Mitchell) and their agent, Billy Jack Mitchell, driver of the truck which ran over the little boy. For purposes of convenient identification, we will hereafter refer to the two sets of defendants as the Campbell defendants and the Mitchell defendants.

The case was tried upon Counts 2 and 3 of the complaint, to which demurrers were overruled. The theory of these counts, to state it generally, is that the Campbell truck-trailer was negligently parked, in violation of Title 36, § 25, Code, on the paved or main traveled portion of a highway, when it was practicable to have left it off the highway; and that the driver of the Mitchell truck so negligently operated said truck in passing the Campbell truck-trailer that said Mitchell truck was caused to run over and kill plaintiff's intestate.

If negligence of the drivers be established, there will be no question as to the liability of the owners of the trucks, it having been admitted in open court that the drivers of the two vehicles were the agents or servants of the owners and were acting within the line and scope of their employment.

There was a single judgment in favor of plaintiff against all defendants. Separate assignments of error are made by the two sets of defendants. The chief questions presented on appeal relate to the overruling of demurrers to the complaint and the refusal of the affirmative charges requested by each set of defendants. Other incidental questions will be hereinafter referred to.

For purposes of our review, there is no material difference between the two counts of the complaint. Count 2 alleges that Campbell, acting by and through his agent, servant or employee, Thomas, then and there acting within the line and scope of his employment, 'was operating an automobile truck and trailer upon and over Highway No. 35 in Jackson County, Alabama, and at a point on said highway in front of Duncan's store, said store now being operated by Ira Dawson, at Duncan's Cross Roads in Jackson County, Alabama, so negligently parked said automobile truck and trailer on the black top or main traveled portion of said Highway No. 35 in such a manner that less than fifteen (15) feet upon the main traveled portion of said highway opposite said standing vehicle was left for free passage of other vehicles. And plaintiff avers that it was then and there practicable to park or leave the automobile truck and trailer standing or parked off of the paved and main traveled portion of said highway; and the defendant, Sand Mountain Gin Company * * * at said time and place, acting by and through its agent, Billy Jack Mitchell, who was then and there acting within the line and scope of his employment, was operating an automobile truck along, upon and over said Highway No. 35; that the said Billy Jack Mitchell, as agent of said partnership aforesaid, at said time and place so negligently operated the said automobile truck he was driving in passing the defendant's, Emory Campbell, automobile truck and trailer, which was negligently and unlawfully parked upon the paved portion of said highway as aforesaid, that he, the said Billy Jack Mitchell, ran or drove said automobile truck into, upon or against, or over plaintiff's infant son, Loil G. Jackson, who was then and there traveling upon said Highway No. 35, and thereby injured and killed him. All, plaintiff avers, was the proximate result of the defendant's Sand Mountain Gin Company, * * * and Billy Jack Mitchell's negligence, and the concurring negligence of Emory Campbell * * * and Fred Doyle Thomas, as aforesaid. Wherefore, the plaintiff avers as the proximate result of the defendants' negligence, as aforesaid, his son * * * was killed.'

On behalf of the Campbell defendants it is insisted that the complaint was demurrable for that it failed to allege that the vehicle was parked outside of a business or residence district. Whether or not omission of such matter rendered the complaint defective, the asserted defect is not pointed out by any ground of the demurrer. This being so, nothing as to this is presented for our review. Code 1940, Title 7, § 236; Deslandes v. Scales, 187 Ala. 25, 65 So. 393.

The only other matter of pleading argued is that the complaint 'was demurrable because it failed to allege the instrumentality which caused the alleged wrongful death of plaintiff's intestate.' We find no ground of the demurrer vaguely resembling the stated objection. No referance is made in argument to any particular ground of the demurrer. Some of the argument seems to be addressed to grounds of the demurrer questioning the sufficiency of allegation as to proximate cause. We are unable to follow this reasoning. The counts very clearly show the instrumentality to have been the Mitchell truck, driven by Mitchell's agent while acting in the line and scope of his authority. The negligence of Campbell's agent, acting within the line and scope of his authority, in stopping or parking the trailer-truck on the paved part of the highway is alleged, along with the negligence of Mitchell's agent in driving his truck around the parked vehicle. It is alleged that the concurring negligence of the two was the proximate cause of the injury and death of intestate. If we are correct in interpreting counsel's argument as insisting that negligence is improperly charged to the master rather than the servants, such argument overlooks the rule that where the complaint charges negligence, as contradistinguished from wantonness, the negligent act may be charged against the defendant master, rather than to the servant acting within the scope of his duty. Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A.,N.S., 389.

The counts are drawn to state a cause of action arising out of violations of the rules of the road, and are in line with our holding in Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881, and other similar cases, and are good as against any of the grounds of demurrer assigned and insisted upon.

Both the Campbell defendants and the Mitchell defendants requested the affirmative charge, and it is strenuously...