Birmingham Electric Co. v. Cochran

• Decision Date: 14 May 1942
• Docket Number: 6 Div. 909.
• Citation: 242 Ala. 673,8 So.2d 171
• Parties: BIRMINGHAM ELECTRIC CO. v. COCHRAN.
• Court: Alabama Supreme Court

8 So.2d 171

242 Ala. 673

BIRMINGHAM ELECTRIC CO. v. COCHRAN.

6 Div. 909.

Supreme Court of Alabama

May 14, 1942

Lange, Simpson, Brantley & Robinson, of Birmingham, for appellant.

E. M. Friend, Jr., of Birmingham, for appellee.

BROWN Justice.

This action on the case is by a passenger against the carrier for damages resulting from personal injury alleged to have been proximately caused by the negligence of the carrier's agents or servants in charge of the operation of one of its street cars in the City of Birmingham.

The case was submitted to the jury on the counts of the complaint charging simple negligence, and the defendant's plea of not guilty, the trial resulting in a judgment and verdict for the plaintiff for $4,000.

The evidence offered by the plaintiff goes to show that on May 10, 1940, about 4 P.M., immediately before the defendant's street car arrived at the regular stopping place at Gate City Junction, she with a friend and another passenger-a gentleman-were standing in the safety zone for passengers waiting for the car; that the car which was equipped with a side door, approached and stopped, and the door opened. That she immediately attempted to enter the car by placing her right foot on the step, which she referred to as "the running board" took hold of the handlebar for passengers, and as she attempted to rise, the car made a lurch forward and at the same time the door began to close causing her to release her handhold, and in consequence her entire weight was thrown on her left foot causing her left ankle to careen and she was thrown or fell forward, and but for the gentleman passenger catching her, would have fallen alongside the car, and probably under it. That her ankle was badly strained and a bone in her foot was broken, and from this injury she has suffered, to a more or less degree, up to the trial. The expert testimony tends to show that she has suffered a 35% loss of the use of her ankle. The evidence further goes to show that she is a seamstress and worked for her living and in her work used a sewing machine which required the use of the left foot. Her right foot had also been injured by an operation. She was sixty-four years of age and a widow at the time of her injury.

The defendant's evidence goes to show that it had no record of any such occurrence, and examined all of its conductors operating cars in its service on the date of the alleged injury, producing their trip sheet, and there was no mention of any such occurrence on said trip sheet, which according to the rules and practices of the defendant was made for each trip, and required all accidents to be reported. The motormen were not examined, but they each and all appeared to have signed the trip sheets.

There is an absence of evidence showing or tending to show that attorney Mudd, though it be assumed that he had been employed by plaintiff as her attorney, had special authority from his client to invite compromise of her claim, and in the absence of such proof Mudd's letter to the defendant was not within the general or apparent scope of his authority. An attorney is the special agent of his client, whose duties usually confined to the vigilant prosecution or defense of the suitor's rights. The power of an attorney is not co-equal, co-extensive, or the equivalent of that of the client. "He is, as has been said in numerous decisions of this court, a special agent, limited in duty and authority to the vigilant prosecution or defense of the rights of the client. He can enter into no bargains or contracts, though he may make agreements in writing touching the course of proceedings in pending suits, or the issue or return of executions on judgments he may have obtained, which will bind the client." Robinson v. Murphy, 69 Ala. 543; National Bread Co. v. Bird, 226 Ala. 40, 145 So 462.

The compromise of a client's action is not within the scope of an attorney's general authority. Special authority from the client is essential. National Bread Co. v. Bird supra; 22 C.J. 393, § 468.

The purpose of the proffered evidence-the statement in Mudd's letter-was to impeach the plaintiff's testimony, and in the absence of such special authority, it was mere hearsay. Floyd v. Hamilton, 33 Ala. 235.

Hence the court did not err in sustaining the plaintiff's objection thereto.

The defendant's counsel in argument to the jury stated: "Gentlemen, we called these men in, made an investigation of the men on that line, and they said they knew nothing about the occurrence at all. We brought the men up here, the conductors on that line who were there before 4:00 o'clock and after 4:30. With those cars running every few minutes, of course there were several." In the closing argument plaintiff's counsel said: "Gentlemen, if they are going to bring up these witnesses and overwhelm us with the great weight of the testimony, why didn't they do more and go 100% of the way and bring the motorman up here too."

The defendant objected to this as improper argument, because the names of the motormen were furnished to plaintiff by the defendant's answers to interrogatories and the motormen were as available to the plaintiff as witnesses as to defendant.

The court in response to the objection instructed the jury "Gentlemen, a lawyer can argue the evidence, any reasonable inference that can be drawn from the evidence. If a lawyer argues any inference from the evidence which you...