Capital Motor Lines v. Loring

Decision Date08 June 1939
Docket Number3 Div. 296.
Citation238 Ala. 260,189 So. 897
PartiesCAPITAL MOTOR LINES ET AL. v. LORING ET AL.
CourtAlabama Supreme Court

Rehearing Denied June 29, 1939.

Appeal from Circuit Court, Montgomery County; Thos. B. Hill, Jr. Special Judge.

Action under homicide act by Joseph H. Loring and Louis C. Loring as executors of the will of Joseph B. Loring, deceased against the Capital Motor Lines, the Standard Oil Company and others. From a judgment for plaintiffs against the defendants except the Standard Oil Company, they appeal.

Affirmed.

See, also, Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881.

John S. Tilley, of Montgomery, for appellants.

D. G. Ewing, of Birmingham, and T. E. Martin and John B. Scott, both of Montgomery, for appellees.

BROWN Justice.

This is an action of trespass on the case by the personal representatives of Joseph B. Loring, deceased, under § 5696, Code 1923--the homicide act--originally instituted against The Standard Oil Company of Kentucky, Capital Motor Lines and J. D. Churchwell. The complaint was filed March 18, 1937, and by amendment filed April 22, 1938, the American Fidelity & Casualty Company was made a party defendant, and the complaint otherwise amended in respects not here material.

The trial resulted in the acquittal of the Standard Oil Company and a verdict for the plaintiff against the other defendants, who have appealed.

The trial was on counts one and two of the complaint, the plea of the general issue, not guilty, the statute of limitation, and the statute of limitation of two years, pleaded in short by consent.

It would seem that both of said counts are subject to the defect of assuming that the act of stopping the bus on the highway, in the circumstances pleaded, constituted negligence as a matter of law, and hence the dependent averment, in the concluding paragraph of said counts, to wit: "All as the proximate consequence of the negligence of the respective defendants as aforesaid," was wholly insufficient to charge the defendants with actionable negligence. [ Italics supplied.] See Birmingham Railway, Light & Power Co. v. Parker, 156 Ala. 251, 47 So. 138; Birmingham Railway, Light & Power Co. v. Weathers, 164 Ala. 23, 28, 51 So. 303; Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443.

The phrase "park or leave standing any vehicle, whether attended or unattended" found in § 70 of the Highway Code is, when considered in connection with Subdivision (c) of said Section, Gen.Acts 1927, p. 375, somewhat equivocal. Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881, 882, but the pleader in Gillette's case overcame this objection by alleging that the defendants "negligently and unlawfully parked or left standing the said bus." The pleading, on demurrer, is of course to be construed most strongly against the pleader, and all intendments resolved against him. The question is not insisted upon here, however, and we pass it with the foregoing observation. [ Italics supplied.]

The appellant, American Fidelity & Casualty Company, who obtained an order of severance in assignments of error, on submission, insists that there is a misjoinder of causes of action in each of said counts, in that the action against the other defendants is ex delicto, and as to it is ex contractu. This insistence is without merit. The Fidelity & Casualty Company, so far as plaintiff is concerned, is a volunteer who stands, so to speak, in the shoes of its insured the Capital Motor Lines, and when it entered into the obligation to indemnify and hold its co-defendant harmless, in the light of the public policy evinced by the statute authorizing and requiring such indemnity or a bond with surety, and its interpretation, it consented to be sued for any liability imposed on the indemnitee by law, no matter what form of action the injured party elected to pursue or the character of damages recoverable, and it is limited to such defenses as its indemnitee may make in such action. Hodges v. Wells, 226 Ala. 558, 147 So. 672; McWhorter Transfer Co. et al. v. Peek, 232 Ala. 143, 167 So. 291; Fidelity & Casualty Co. of New York v. Jacks, 231 Ala. 394, 165 So. 242.

This view of the law forecloses the contentions that the action as against the appellant Fidelity & Casualty Company is barred by the statute of limitation, and that it is not subject to pay punitive damages assessed under the homicide act. The damages are not imposed to punish the indemnitor, and its liability to pay such damages arises out of its voluntary obligation to pay the judgment rendered against said indemnitee.

While there is evidence having slight tendency to show that the truck of the Standard Oil Company came on the scene after the bus stopped, the weight of the evidence goes to show that the truck had reached the spot ahead of the bus and was parked when the bus arrived. Otherwise, than as above stated, the evidence appears to be in substance the same as presented on the appeal in Capital Motor Lines v. Gillette, supra.

The question, whether or not the bus company and its driver were guilty of negligence, was under the evidence a jury question, and we are not able to affirm that the verdict was contrary to the great weight of the evidence or was excessive. Montgomery Light & Water Co. v. Thombs, 204 Ala. 678, 87 So. 205.

The affirmative charge for the defendants, appellants here, was refused and new trial denied without error.

The witness, Harrison, before defendant's counsel asked the question, the predicate for assignment of error 16, had testified that he was sitting on the front seat right back of the driver and could see out ahead "of him on the road," and "witness saw down in there ahead of the bus a congestion of traffic, people stopping, looking at a wreck that had happened. * * * As soon as witness came over the hill in the bus he could see there were several cars blocking the road." [ Italics supplied.]] The question called for a mere repetition of this testimony and the objection thereto was properly sustained.

The question put to defendant's witness Crashul on cross-examination: "Well, in 1935, how did they go out?"...

To continue reading

Request your trial
13 cases
  • Northwestern National Casualty Company v. McNulty
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 21, 1962
    ...insurance company.14 American Fidelity and Casualty Company v. Werfel, 231 Ala. 285, 164 So. 383 (1935); Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897 (1939); Morrell v. Lalonde, 45 R.I. 112, 120 A. 435 (1923), and Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co. v. Thornto......
  • Owens-Illinois, Inc. v. United Ins. Co.
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 29, 1993
    ...N.J.Super. 537, 547, 342 A.2d 513 (App.Div.1975). The law of other jurisdictions may be different. See, e.g., Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897 (1939); Southern Farm Bureau Cas. Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969); Thrift-Mart, Inc. v. Commercial U......
  • Alabama Power Co. v. King, s. 6
    • United States
    • Alabama Supreme Court
    • June 2, 1966
    ...averment in the last paragraph was insufficient to charge the defendants-appellants with actionable negligence. Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897. In Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443, the complaint, in parts material to this review, ......
  • Almon v. Commission of Ed. of Cullman County
    • United States
    • Alabama Supreme Court
    • January 17, 1957
    ...which the trial court later permitted the witness to answer. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix; Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897. Assignments of Error 5, 6 and 7 are entirely too general to warrant consideration. Jackson Lumber Co. v. Butler, 244 Ala.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT