Aplin v. Dean

• Citation: 164 So. 737,231 Ala. 320
• Decision Date: 19 December 1935
• Docket Number: 1 Div. 899
• Parties: APLIN v. DEAN.
• Court: Supreme Court of Alabama

164 So. 737

231 Ala. 320

APLIN v. DEAN.

1 Div. 899

Supreme Court of Alabama

December 19, 1935

Appeal from Circuit Court, Baldwin County; F.W. Hare, Judge.

Suit for damages for personal injuries by N.W. Dean against T.J Aplin. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

W.C Dorn and Gordon, Edington & Leigh, all of Mobile, for appellant.

Beebe &amp Hall, of Bay Minette, for appellee.

KNIGHT Justice.

Action by N.W. Dean, appellee here, to recover damages for personal injuries sustained by him in a collision between a truck driven by the defendant, appellant, and a truck driven by one Jack Phillips, and in which last-named truck the plaintiff was riding as a passenger.

The accident occurred at or near Stockton, in Baldwin county, on November 28, 1934, at an early hour in the morning. The complaint avers that the accident occurred "on the Bay-Minette-Tensaw public road, at a place about one-half mile north of Stockton post office."

We call attention to this averment of the complaint, for the reason that the defendant requested the general affirmative charge, predicated, as here insisted, upon the failure of plaintiff to prove that the road upon which the accident occurred was one of the public highways of the state, or that it was, in fact, the Bay-Minette-Tensaw public road. It will be noted, however, that, if there was any variance between the averment of the complaint, in this regard, and the proof submitted, no such variance was suggested to the trial court so far as the bill of exceptions discloses. That the accident occurred upon a public highway in Baldwin county the evidence leaves no room to doubt. That it occurred within a very short distance of Stockton is also shown by the evidence. One witness, W.M. Richardson, described the road as the main Stockton-Tensaw highway, and it ran by or through Stockton to Bay-Minette.

The evidence tended to show that the collision was the result of negligence on the part of the defendant, and also to show that the driver of the car, in which plaintiff was riding, was also negligent in handling his car just at the time of, or immediately preceding, the accident, and finally that the collision was the result of the combined negligence of the two drivers. That if the driver of the car in which plaintiff was riding was guilty of any negligence, that such negligence concurred and coalesced with the negligence of defendant and the negligence of the two drivers thus concurring at the same moment of time proximately caused plaintiff's injury. The evidence was such that the jury was warranted in drawing the above conclusion.

That the plaintiff was a guest only in the Phillips' car is not controverted.

It is first insisted that the court committed error to reversal in sustaining plaintiff's demurrer to defendant's pleas of contributory negligence numbered 2, 3, and 5. This contention cannot be sustained for more than one reason. First, there is no judgment entry sustaining the demurrers. All that the record shows with reference to any action of the court on these pleas is what purports to be "a docket entry." We quote this in full: "Docket sheet. The docket sheet in the above styled cause shows the following entry: to-wit: 2/28/23. Demurrer to complaint overruled. Demurrers sustained to pleas 2 and 3 and 5. Overruled as to plea 4." This is not a judgment of the court upon the demurrer, but a mere direction to the clerk to enter the proper judgment, which was not done.

In the next place, the defendant, under plea 4, had the full benefit of all matters of defense available to him under pleas 2, 3, and 5.

There is no merit in defendant's eighth assignment of error. The evidence was sufficient to authorize the jury to find that the accident occurred upon a public highway in Baldwin county, within a half mile of Stockton; that this public highway ran through Stockton to Bay-Minette. One of the witnesses called it the Stockton-Tensaw highway. At most, the omission of proof, in this respect, presented only a question of variance, capable of being supplied by further evidence identifying the highway. The variance, if any in fact, was not called to the trial court's attention, and the court will not be put in error for refusing to give the general affirmative charge for defendant based upon this supposed variance. Rule 35.

Charge 6, requested by the defendant, was refused without error. If for no other reason, the charge was fully covered by the court in its oral charge to the jury.

The general rule is that it is no defense, in actions for injuries resulting from negligence, that the negligence of third persons contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred. Stated differently, where a defendant is guilty of negligence, which causes an injury, and the plaintiff is free from negligence contributing thereto, the fact that the negligence of a third person also contributed does not relieve the defendant from liability for his negligence. 22 R.C.L. § 16, pp. 128, 129.

Causes are concurrent when they act contemporaneously to produce a given result. Pollard v. Oklahoma City R. Co., 36 Okl. 96, 128 P. 300, Ann.Cas.1915A, 140; Herr v. City of Lebanon, 149 Pa. 222, 24 A. 207, 16 L.R.A. 106, 34 Am.St.Rep. 603.

We fully recognize the rule stated in Garrett v. Louisville & Nashville R.R. Co., 196 Ala. 52, 71 So. 685, 686 that: "The law, in its practical administration in cases of this kind, regards only proximate or immediate, and not remote, causes, and, in ascertaining which is proximate and which remote, refuses to indulge in...