Brown v. Southeastern Greyhound Lines

• Decision Date: 15 March 1951
• Docket Number: 6 Div. 124
• Citation: 255 Ala. 308,51 So.2d 524
• Parties: BROWN v. SOUTHEASTERN GREYHOUND LINES, Inc., et al.
• Court: Alabama Supreme Court

Page 524

51 So.2d 524

255 Ala. 308

BROWN v. SOUTHEASTERN GREYHOUND LINES, Inc., et al.

6 Div. 124.

Supreme Court of Alabama.

March 15, 1951.

Gibson & Hewitt, of Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellees. The following charges were given at the request of the defendants:

'21. The Court charges you that if you should be reasonably satisfied from the evidence that damages should be awarded in this case under the Homicide Act for the purpose of punishing the defendant for some wrongdoing committed in connection with the death of Mr. Davy, then and in that event the Court charges you that such damages and the amount thereof should be measured by and should be in proportion to the gravity and nature of the defendant's wrong and should not be measured by the value of Mr. Davy's life.

'27. The Court charges you that if you are reasonably satisfied from the evidence that defendant's bus driver drove the bus on the occasion complained of with that degree of care that a reasonably prudent person would have employed under the same or similar circumstances, then and in that event you need consider the case no further and your verdict should be in favor of the defendant.

'28. The Court charges you that the duty rested upon the defendant's bus driver on the occasion complained of was to drive the bus with that degree of care which an ordinarily prudent person would have observed under the same or similar circumstances, and the Court further charges you that if you are reasonably satisfied from the evidence that the defendant's bus driver observed this degree of care, then and in that event you need consider the case no further and your verdict should be in favor of the defendant.

'34. The Court charges you that if you are reasonably satisfied from the evidence in this case that Mr. Davy owned the automobile in which he was riding, then and in that event, the Court charges you that Mr. Davy would be held to be legally responsible for the manner in which his said automobile was driven while he was riding therein.

'38. The Court charges you that if you are reasonably satisfied from the evidence that Miss Cantrell was guilty of negligence and that the bus driver was guilty of negligence and that the negligence of both proximately contributed to the death of Mr. Davy and the damage to his automobile, and should you be further reasonably satisfied from the evidence that the bus driver did not wantonly kill Mr. Davy or wantonly damage his automobile or commit any other breach of duty on said occasion, then and in that event your verdict should be in favor of the defendant.

'39. The Court charges you that if you are reasonably satisfied from the evidence that Miss Cantrell was driving the automobile owned by Mr. Davy on the occasion complained of and should you be further reasonably satisfied from the evidence that Miss Cantrell negligently permitted said automobile to move at a negligent rate of speed so as to cause said automobile to slide or skid out of control and should you be further reasonably satisfied from the evidence that Miss Cantrell's negligence in so doing proximately contributed to the death of Mr. Davy and the damage to his automobile, then and in that event the Court charges you that you cannot find in favor of the plaintiff in this case unless you are further reasonably satisfied from the evidence that the defendant wantonly killed Mr. Davy or damaged his automobile or committed some other breach of duty other than simple negligence.

'41. The Court charges you that in order to constitute wilfulness or wantonness or reckless indifference to probable consequences, it is essential that the act done or omitted should be done or omitted with a knowledge or a present consciousness that injury would probably result, and this consciousness is not to be implied from mere knowledge of the elements of the dangerous situation a party may have and yet act only negligently and inadvertently in respect of the peril.'

LAWSON, Justice.

This is a suit by Lillian Davy Brown, as administratrix of the estate of her father, Clarence Vincent (Jack) Davy, against Southeastern Greyhound Lines, a corporation, and David Eugene Ross.

There were four counts in the complaint. Counts A and B sought to recover damages under the homicide statute, § 123, Title 7, Code 1940, for the death of plaintiff's intestate. Count A charged simple negligence and Count B charged wantonness. Counts C and D sought to recover for damage to the automobile of plaintiff's intestate. Count C was based on simple negligence and Count D charged wantonness.

The defendants pleaded the general issue in short by consent in the usual form.

The verdict of the jury was in favor of both defendants. Judgment was in accord with the verdict. Plaintiff's motion for a new trial having been overruled, she has appealed to this court.

The only assignments of error sufficiently argued in brief relate to the action of the trial court in giving to the jury certain written instructions requested by the defendants.

Plaintiff's intestate lost his life as a result of injuries received in a collison between an automobile owned by him but driven by a Miss Cantrell and a passenger bus owned by the corporate defendant and driven by the defendant David Eugene Ross. The collision occurred on the Birmingham-Montgomery highway a short distance north of Verbena in Chilton County. Intestate's car was being driven in a southerly direction and the passenger bus was travelling north.

The evidence shows that intestate was a widower and had been going with Miss Cantrell for about a year. Miss Cantrell always drove when she and intestate were riding together in intestate's car. On the day of the collision, September 3, 1949, intestate and Miss Cantrell were en route to either Pensacola or Panama City, Florida.

Proof of the ownership of the car by intestate raised a presumption that Miss Cantrell was operating it as the owner's agent and was acting within the line and scope of her authority. Cox v. Roberts, 248 Ala. 372, 27 So.2d 617, and...