Anderson v. Kemp

• Decision Date: 31 March 1966
• Docket Number: 6 Div. 209
• Citation: 279 Ala. 321,184 So.2d 832
• Parties: Thomas W. ANDERSON v. Charles W. KEMP, Sr., et al.
• Court: Alabama Supreme Court

Page 832

184 So.2d 832

279 Ala. 321

Thomas W. ANDERSON v. Charles W. KEMP, Sr., et al.

6 Div. 209.

Supreme Court of Alabama.

March 31, 1966.

Anthony L. Cicio, Jones, Fowler, Propst & Topazi, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.

SIMPSON, Justice.

This is an appeal on the record from a judgment rendered in favor of the plaintiff and against the defendants. Appellant here was the plaintiff below. The original complaint, and the complaint as last amended, contained two counts wherein the plaintiff claimed damages for injuries received while riding as a passenger in a City Cab Company taxicab, against the City Cab Company, and its driver, Dan Rather Strother, the Kemps, partners doing business as Kemp's Garage, and Kemp's driver James Hibbler.

On the day of trial, prior to the striking of the jury, a pro tanto settlement was reached between the plaintiff and City Cab Company and its driver. It was agreed that $750 would be paid to plaintiff in behalf of City Cab Company and its driver and that plaintiff would execute a pro tanto release in favor of these defendants. After this agreement was reached, the attorneys for the plaintiff announced in open court that they (these defendants) were stricken as parties defendant. The case proceeded to trial against the remaining defendants, the appellees here.

At the conclusion of the evidence, the court charged the jury (parts of which charge will be set out below) and the jury returned its verdict in the following form:

'We, the jury find for the plaintiff and against the defendants and assess his damages at Fifteen Hundred ($1,500.00) Dollars ($750.00--City Cab Company $750.00--Kemps).'

The minute entry further shows:

'It is further ordered and adjudged by the court that the defendant City Cab Company, Incorporated be and it is hereby released and judgment is rendered in favor of the plaintiff and against the defendants, Charles W. Kemp, Charles W. Kemp, Jr., and James Hibbler, Jr. for the sum of Seven Hundred Fifty ($750.00) Dollars and all costs herein accrued for which execution may issue.'

Thereupon the court rendered its judgment based upon the verdict of the jury against the defendants Kemps and their driver in the amount of $750.

Plaintiff filed a motion for a new trial in which the issues raised are the points assigned as error and argued on this appeal:

1. The court erred in its oral instruction to the jury. The appellant contends that the effect of the court's charge was to instruct the jury that in order to find for the plaintiff, it must find concurring negligence on the part of the defendants stricken before the trial.

2. The court erred in that it rendered its judgment upon an irregular verdict of the jury.

We disagree with the appellant that the court's charge was to the effect that the plaintiff could not recover unless the jury found that his injuries were the proximate result of the combined and concurring negligence of all defendants, including those stricken before trial. The court carefully explained to the jury that City Cab Company and its driver were out of the case, stating:

'Now, as has been stated to you, originally this complaint had this other defendant in it, that is the City Cab Company, and a man by the name of Strother. As has been related to you, these defendants have been eliminated from your consideration, so you only have the two Kemps and James Hibbler as defendants in this case.'

Further,

'You take into consideration those circumstances of that time and determine from those circumstances whether or not this defendant, or these defendants, or either this defendant, Kemp--the two Kemps and Hibbler, or the City Cab and Strother were guilty of negligence under those circumstances that proximately contributed to the injuries of this plaintiff. * * *

'Now, gentlemen, when you get back there if you are reasonably satisfied from all the testimony in this case that the defendants, the Kemps and James Hibbler were guilty of negligence that proximately contributed to the injuries of this man, or if you are reasonably satisfied from the evidence in this case that the City Cab Company and Strother along with the Kemps and Hibbler both were guilty of negligence that proximately contributed to the injuries of this plaintiff, Mr. Anderson, then you would come down to the point, gentlemen of the jury, of the question of damages.'

We do not agree with the appellant's interpretation of this charge and even so, this point is unavailable to him on this appeal. It has long been the law in Alabama that this Court does not consider on an appeal by the winning party any ruling or action by the trial court bearing on the liability of the other party and not affecting the amount of damages recovered. Holloway v. Henderson, 203 Ala. 246, 82 So. 344; Cocke v. Edwards, 215 Ala. 8, 108 So. 857; Patt v. Welsch, 18 Ala.App. 82, 89 So. 94, cert. den. 206 Ala. 196, 89 So. 432.

We turn now to the assignments of error complaining that the verdict of the jury was irregular and that the court erred in entering judgment upon it.

Unquestionably good trial practice requires and it is settled in this state that in actions against joint tort-feasors a single verdict is required and the jury cannot apportion damages between them. City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25; Laymon v. Hendrix, 1 Ala. 212; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; Bull v. Albright, 254 Ala. 29, 47 So.2d 266; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612.

It is equally well settled, however, that a person injured by joint tortfeasors may...