Barfield v. Evans

• Decision Date: 14 May 1914
• Docket Number: 710
• Parties: BARFIELD v. EVANS.
• Court: Alabama Supreme Court

65 So. 928

187 Ala. 579

BARFIELD v. EVANS.

No. 710

Supreme Court of Alabama

May 14, 1914

Rehearing Denied July 2, 1914

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by J.S. Evans, as administrator, against Frances J. Barfield for damages for the death of his intestate caused by an automobile accident. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 2 sufficiently appears from the opinion.

Count A is as follows:

Plaintiff suing as administrator of the estate of E.L. Evans deceased, claims of defendant the sum of $25,000 damages for that whereas, to wit, on October 26, 1912, defendant was running and operating an automobile upon the streets of Birmingham, Jefferson county, Ala., when the same ran against plaintiff's intestate, a pedestrian, who was crossing the street, to wit, Eighth avenue, at or near its intersection with Williams street, and plaintiff's intestate was thereby so greatly crushed, injured, bruised, and mangled that he died. And plaintiff avers that his said intestate's injuries and death were proximately caused by reason of, and as a direct consequence of, the wanton acts of defendant's servant or agent while acting within the line and scope of his authority.

The following charges were refused to defendant:

(8) If you believe that the witness Klyche has taken a personal interest in this case, and that he is to be compensated in case plaintiff gets judgment, then that is a circumstance to which you may look in weighing his testimony. (9) If you believe that any one in this has sworn falsely to any material fact in issue, then you may discredit his entire testimony. (10) You are the sole judges from all the evidence in this case, and you are to judge from the evidence before you whether the chauffeur, Ralph Condray, was in defendant's employment, and acting within the scope of his employment, as such servant or agent, and, if you believe from the evidence that he was not in her employment or her agent or servant, you cannot find for defendant. (11) If there is any individual juror who is reasonably satisfied that the chauffeur was not the agent or servant of defendant at the time of the accident, then you cannot find a verdict for plaintiff. (12) If you believe that the witness Charles Wheelen has taken a personal interest in this case, and that he is to be compensated in case plaintiff gets a judgment then this is a circumstance to which you may look in weighing his testimony.

Mayfield and De Graffenried, JJ., dissenting.

Prosch & Prosch and Allen & Bell, all of Birmingham, for appellant.

Garber & Garber, of Birmingham, for appellee.

SAYRE J.

Great stress is laid in argument upon the action of the trial court in overruling demurrers to counts 2 and A.

Count 2 alleges that:

"Defendant was running and operating an automobile upon the streets of Birmingham *** when the same ran upon and against plaintiff's intestate, a pedestrian, who was crossing Eighth avenue. *** And plaintiff avers that his said intestate's injuries and death were proximately caused by reason of and as a direct consequence of the negligence of Ralph Condray, the defendant's servant or agent, while acting within the line and scope of his employment as such."

We think the only plausible objection taken in argument against this count may be thus formulated: While it shows that "defendant" was operating the car, and so that "defendant" owed a duty to plaintiff's intestate in his situation, it shows negligence on the part of Condray only, of whom no duty in the premises is categorically predicated, because it is not unequivocally alleged that he was engaged in the manual operation of the car, and thus fails to show that the act complained of was a breach of duty on the part of the person who did it. While the count leaves it to be inferred that defendant was operating the car by her agent Condray, or that Condray was operating the car for defendant, and thus it appears that the averments of act and duty are not correlated with that technical accuracy and certainty which the rules of good pleading may require, still the count did not fail to state a cause of action, for the inference is reasonably clear, though not inevitable, that plaintiff was injured by the negligence of defendant's servant Condray in the manual operation of the car, so satisfactory altogether as to put upon defendant the burden of answering by demurrer in which the defect should have been "distinctly stated," as the statute requires (Code, § 5340), and the objection cannot be taken for the first time on appeal. The demurrer, if intended to reach this point, was too general in its language, and for this reason, if none other, was properly overruled.

Count A has been held good in Barbour v. Shebor, 58 So. 276. We do not see, however, that the decision in that case is conclusive of the question here raised by the argument made against count 2 and repeated as against count A, for the opinion there indicates that the court was answering only the argument that the complaint was too general in its averment of the immediate act of negligence charged. As for that question, Barbour v. Shebor, supra, and the cases there cited are in point, and sustain the trial court's ruling on the demurrers to all the counts in this case. As for the ground now urged in argument against counts 2 and A especially, and stated above in our discussion of the demurrer to count 2, we prefer to rest our ruling upon what is there said.

Numerous exceptions were reserved on the admission of evidence. Plaintiff's intestate had been away and almost instantly killed by an automobile just after he stepped from a street car. Condray was in charge of the automobile, was driving it at great speed, and there is no room for doubting that his reckless negligence was responsible for the disaster. The main, indeed the only, question of dispute was whether Condray was acting at the time as the servant of defendant, and this depended entirely upon the question whether defendant was at the time engaged in the common carriage of passengers for hire and used the machine in that business. Appellant (defendant) was not in the automobile, nor was there any evidence going to show that she knew the machine was in use at the time or had any interest in its immediate use, unless she was engaged in the business of carrying passengers. She had owned the machine at one time, but she brought evidence tending to show that some time before the occasion in question she had disposed of it to one Jones, who operated a public line of automobiles or taxicabs for the common carriage of passengers, and that she had at the time no interest in, or control of, the machine. She also contended that, however that issue might be solved, the evidence did not warrant a verdict against her for that it failed to exclude the idea that the machine was at the time being operated by Condray upon some business of his own. Upon these theories she requested the general charge as to each of the counts and upon the case as a whole.

We find it convenient at this point to dispose of the question raised by the court's refusal of these charges. In this connection it must be noted that there was evidence tending to show that the machine had been in use and that Condray had been driving it, for the common carriage of passengers for hire about the city of Birmingham. The relation between the owner and the driver while the machine was being so used was governed by those general rules of law which obtain between master and servant, and the owner's liability, to strangers for the wrongful and negligent acts and omissions of the driver in operating the machine depended upon the propriety of a finding on the evidence that the driver at the time of the act or omission complained of was acting for defendant and within the scope of his employment. Parker v. Wilson, 60 So. 150, 43 L.R.A. (N.S.) 87. Condray testified that he had three passengers in the car at the time. Both parties were content to let the question, whether he was acting for the owner or upon some business peculiarly his own, rest for decision upon this statement of the witness and the evidence going to show that he was ordinarily engaged in operating the automobile as a public vehicle for the common carriage of passengers for hire, that defendant owned the machine, controlled its use, and enjoyed the benefit of its earnings. From this evidence, there being nothing in the circumstances to indicate the driver's departure from the line of his employment, the jury might have found that the driver was at the time engaged in the business of the defendant.

Referring now to the rulings on evidence: Plaintiff's effort was to show that defendant through the agency of Jones was using the car in the public business of carrying passengers, that she (defendant) had turned the car over to him for that purpose and we think it may be said that plaintiff's right to recover under the evidence depended upon a finding of these facts. As bearing upon the question whether defendant did so use the car for the common carriage of passengers, the ownership of the car was the most seriously contested single fact in the case. The ultimate issue, of course, was whether the driver in charge of the car at the moment of the accident was the agent or servant of defendant or of Jones. There was no inherent necessity in the nature of things that the mere ownership of the car should determine liability for its operation. Defendant might have let the car to Jones for use in his business, giving him the control of it, without becoming responsible for the manner of its operation by him or his servants. But that explanation of the relation between them was not offered. There being evidence from...