Bell v. Riley Bus Lines

• Decision Date: 13 March 1952
• Docket Number: 4 Div. 649
• Citation: 257 Ala. 120,57 So.2d 612
• Parties: BELL v. RILEY BUS LINES et al.
• Court: Alabama Supreme Court

Page 612

57 So.2d 612

257 Ala. 120

BELL v. RILEY BUS LINES et al.

4 Div. 649.

Supreme Court of Alabama.

March 13, 1952.

Grady G. Cleveland, Jr., Eufaula, for appellant.

A. M. McDowell and Chauncey Sparks, Eufaula, for appellee, Herrington.

Clayton & LeMaistre, Eufaula, for appellee, Riley Bus Lines.

BROWN, Justice.

The appellant sued Riley Bus Lines; Riley Bus Lines, a corporation; Isaac Riley and Sarah Riley, doing business as Riley Bus Lines; and Herrington Motor Company and Truck Lines and Wallace Herrington doing business as Herrington Motor Company and Truck Lines, for wrongfully causing the death of her intestate, basing her right to sue on § 123, Title 7, Code of 1940, commonly referred to as 'The Homicide Act.'

The complaint consisted of two counts. Count One claimed $25,000 as damages for that 'on heretofore, on the 2nd day of September, 1950, the plaintiff's intestate, Howard Bell, was a paid passenger on a Bus then and there being operated by Defendant Riley Bus Lines, or by Defendant's agent, who was then and there acting within the line and scope of his authority, the Plaintiff's intestate having paid the said Riley Bus Lines for his passage from one point to another, and the said Bus was being then and there operated by Defendant or Defendant's agent, who was then and there acting within the line and scope of his authority, at a point on the Clayton-Eufaula Highway, known as State Highway No. 30, in Barbour County, Alabama, at a point on said Highway approximately Five Miles East of Clayton, Barbour County, Alabama, when an automobile Truck and trailer then and there being operated by the defendant Wallace Herrington, doing business as Herrington Motor Company and Truck Lines, or the Defendant's agent who was then and there acting within the line and scope of his authority, ran into, over, upon and against the said Bus being then and there operated by the Defendant Riley Bus Lines, or Defendant's agent who was then and there acting within the line and scope of his authority, and as a proximate result or consequence thereof, the plaintiff's intestate, Howard Bell, was killed. Plaintiff avers that the said Howard Bell was killed as a proximate result or consequence of the concurrent negligence of Riley Bus Lines, or Riley Bus Lines, a corporation, or Sarah Riley and Isaac Riley doing business as Riley Bus Lines, and Herrington Motor Company and Truck Lines, or Wallace Herrington, doing business as Herrington Motor Company and Truck Lines, or their respective agents who were then and there acting within the line and scope of their authority, in and about the management or operation of the said Bus and the said automobile truck and trailer.'

The second count of the complaint which, the court stated in the oral charge was eliminated, ascribed the death of said intestate 'as a proximate result or consequence of the concurrent wanton or wilful negligence of Riley Bus Lines, Riley Bus Lines, a Corporation, or Isaac Riley and Sarah Riley doing business as Riley Bus Lines, or said Defendant's agent who was then and there acting within the line and scope of his authority and Wallace Herrington doing business as Herrington Motor Company and Truck Lines, or Herrington Motor Company, or this said Defendant's agent who was then and there acting within the line and scope of his authority, and as a proximate result or consequence thereof the Plaintiff was damaged as aforesaid.'

The defendants Riley Bus Lines, Isaac Riley and Saralee Riley 'separately and severally' pleaded the general issue. Likewise the defendant Herrington Motor Company and Truck Lines and Wallace Herrington doing business as Herrington Motor Company and Truck Lines 'severally pleaded to each count of the complaint, severally and separately, the general issue.' The other defendants sued did not appear or plead.

The trial was by jury duly demanded by the plaintiff and the jury returned a verdict in the following words and figures:

'We the Jury return verdict in favor of plaintiff and assess damages against Riley Bus Line $5,000.00 and Wallace Herrington $2,500.00.' Judgment was entered on said verdict and Isaac Riley, Saralee Riley and Riley Bus Lines, a partnership composed of Isaac Riley and Saralee Riley, seasonably made motion for a new trial on the grounds that said 'verdict and judgment are contrary to the law of the case; said verdict and judgment are contrary to the evidence of the case; said verdict and judgment are not sustained by the great preponderance of the evidence; said verdict and judgment are arbitrary and prejudicial; said verdict and judgment are contrary to law, in that the complaint claimed damages from Riley Bus Lines and Wallace Herrington for the death of plaintiff's intestate, allegedly caused by the concurring negligence of both said joint defendants, and the verdict and judgment were returned and entered in favor of plaintiff against both said defendants and was not in a lump sum against both defendants but apportioned the damages in the sum of $2500 against Wallace Herrington and in the sum of $5000 against Riley Bus Lines; said verdict being in words and figures as follows: 'We the jury return verdict in...