Alaga Coach Line, Inc. v. Foy

• Decision Date: 12 October 1933
• Docket Number: 4 Div. 723.
• Citation: 150 So. 493,227 Ala. 506
• Parties: ALAGA COACH LINE, Inc., v. FOY.
• Court: Alabama Supreme Court

150 So. 493

227 Ala. 506

ALAGA COACH LINE, Inc., v. FOY.

4 Div. 723.

Supreme Court of Alabama

October 12, 1933

Rehearing Denied Nov. 9, 1933.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Action for damages by R. E. Foy, doing business as Barbour Bakery against the Alaga Coach Line, Inc. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Chauncey Sparks, of Eufaula, for appellant.

McDowell & McDowell, of Eufaula, for appellee.

KNIGHT Justice.

From a judgment in favor of the plaintiff in the court below, the present appeal is prosecuted by the defendant, Alaga Coach Line, Inc. The appellant presents for our consideration certain rulings on the pleadings, evidence, and the refusal of a number of written charges requested by it on the trial.

It is first insisted that the court below committed error, to a reversal, in overruling the defendant's demurrer to the complaint. As originally filed, the complaint consisted of four counts; the first two counting upon simple negligence and the others for a wanton wrong. However, the last two counts, before the jury retired, were withdrawn by the plaintiff, and the jury was so instructed by the court.

From the complaint, it is made to appear that the plaintiff owned a certain particularly described truck, which was used at the time for delivery purposes, in his bakery business, and that the defendant also owned and operated a motorbus, which, at the time a collision occurred between the plaintiff's truck and the defendant's said bus, was being used in the transportation of passengers from Dothan, Ala., to the Alabama state line, in Russell county, Ala. The two automobiles were being operated, at the time of the collision, by the agents of the respective parties, along the Eufaula and Abbeville public highway, at a point about seven miles south of Eufaula, and at or near what is known as White Oak Church. The two cars were traveling in opposite directions; the plaintiff's car was proceeding south while the defendant's bus was going north. As to the collision, the first count contained the averment: "Plaintiff avers that the defendant acting by and through its agent, within the purview and scope of his authority as such agent, and said agent with authority to bind defendant therein and thereabout, negligently ran said defendant's bus into plaintiff's truck, which was driven by plaintiff's agent, and upon which he was riding, causing the truck of the plaintiff to be knocked into the ditch on the west side of the road, hitting the truck, which was going south just over the left front wheel, demolishing the engine, and generally destroying plaintiff's truck for use as a delivery truck, and causing the truck of the plaintiff to be forced against the bank on the west side of the road, and as a proximate result of defendant's negligence, acting by and through his agent as aforesaid, within the purview and scope of said agent's authority to bind the defendant therein and thereabout, plaintiff was injured by having his truck destroyed for use," etc.

The second count contains the same identical averment, except, in lieu of the words, "negligently ran said defendant's bus into the plaintiff's truck," it is averred, that the defendant's said agent "negligently permitted defendant's said bus or motor car to run into plaintiff's truck."

It is insisted by the appellant that two distinct and independent causes of action are joined in each of counts 1 and 2, and therefore, as against defendant's demurrer, the counts were bad. The particular insistence is that, by reason of the peculiar wording of the counts, they set up two causes of action, and stating the insistence in the language of appellant's counsel, "one based on the negligence of the defendant and the other based upon the negligence of the agent of the defendant." As we view the counts, the contention of appellant cannot be sustained. Whatever negligence is charged in the counts is directly based upon the negligence of the defendant's agent. The added averment in the counts, "and said agent with authority to bind defendant therein and thereabout," following the preceding averment, "that defendant acting by and through its agent, within the purview and scope of his authority as such agent," was wholly unnecessary. However, the pleader in this further averment had it evidently in mind to leave no room for doubt that the agent of the defendant who ran said bus into the truck of plaintiff was a duly authorized agent to operate the same at the time of the collision, and thereby to render the defendant liable therefor.

The counts, under our rules of pleading, were sufficient and not subject to any grounds of demurrer assigned thereto, though, we may add, that each proceeds with more elaboration and particularity of averment than is exacted to meet the requirements of good pleading.

Assignments of error 12 and 13 involve the propriety of the court's action in permitting the plaintiff to propound the following question to his witness McCarroll, the driver of plaintiff's truck: "Well, did the blow at that time knock it over into the ditch?" The plaintiff was here referring to his truck, which figured in the collision. It is insisted that this question called for a conclusion of the witness, and not the statement of a fact. The bill of exceptions recites on this point: The court overrules an objection by the defendant to the above question, whereupon the defendant duly reserves an exception to the ruling of the court. There was a motion to exclude the answer of the witness, which answer was, "Yes, sir, against the bank," but it is not disclosed upon what ground the motion was predicated.

The only objection, which we would be authorized to assume was made, was a general one, and this would not cover the objection that the question called for a conclusion of the witness. Even if it be conceded that the question called for a conclusion of the witness and not the statement of a fact, the trial court would not be put in error for overruling the defendant's undefined objection. Bates v. Morris, 101 Ala. 282, 13 So. 138; Wallis v. Rhea, 10 Ala. 453; Sanders v. Knox, 57 Ala. 81; Larkin v. Baty, 111 Ala. 303, 18 So. 666; Rule of Practice 33. However, we are fully of the opinion that the question called for a statement of fact, and not the conclusion of the witness, and the court was fully justified in the ruling made. Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547.

Again, it is insisted that the trial court committed error to a reversal in overruling defendant's objection to the following question propounded by the plaintiff to his witness Roberts: "I'll ask you, Mr. Roberts, whether or not you traced the tracks of the Foy or McCarroll truck back down the hill north to see where it was traveling in the road?" The record fails to show that defendant reserved an exception to any ruling the court may have made with respect to said question, and therefore appellant can take nothing by this assignment of error.

Objection was made by the defendant, and an exception was duly reserved, to the following question propounded by the plaintiff to his witness Walker: "Well did they lead up to the crest of that hill there where the Foy truck was knocked into the ditch?" The grounds of objection assigned were: "1. Said question was irrelevant, incompetent, inadmissible and immaterial. 2. Said question calls for a conclusion of facts. 3. Said question asks for an opinion of the witness." The answer of the witness was: "They did."

Prior to the time this question was asked, the witness had testified without objection that he went to the scene of the accident within a few minutes after it...