Couch v. Hutcherson

• Citation: 8 So.2d 580,243 Ala. 47
• Decision Date: 05 June 1942
• Docket Number: 6 Div. 968.
• Parties: COUCH et al. v. HUTCHERSON.
• Court: Supreme Court of Alabama

8 So.2d 580

243 Ala. 47

COUCH et al. v. HUTCHERSON.

6 Div. 968.

Supreme Court of Alabama

June 5, 1942

London & Yancey, Geo. W. Yancey, and Fred G Koenig, Sr., all of Birmingham, for appellants.

Curtis & Maddox, of Jasper, and J. C. Milner, of Vernon, for appellee.

FOSTER, Justice.

There are two questions in this case of primary importance. Both are involved in the affirmative charge requested for appellant. One question is whether there is sufficient evidence to support a charge of wilfully or wantonly causing the death of plaintiff's intestate, and the other is whether plaintiff should have proceeded under the Workman's Compensation Law, Code 1940, Tit. 26, § 253 et seq., on the theory that his intestate was an employee of appellant and that he suffered death by an accident arising out of and in the course of his employment. There are other collateral questions to which we will refer.

Appellant was a road contractor engaged on a section of road near Vernon, Alabama, and was sending supplies and material to the project from Sulligent, some ten or eleven miles from the work. On the morning in which intestate was injured, a truck loaded with hot asphalt was about to leave Sulligent for the location of the work. The truck and load was said by appellant's truck driver to weigh 11,500 pounds. The plaintiff's evidence tended to show that before leaving Sulligent he pulled up to a filling station, where there were present a foreman of appellant and others disinterested. That this foreman said he needed a man to flag on the job. Intestate was near and was called. He was seventeen years old and was just out of school in July 1939. He had not done much work, and no hard labor. He was told by the foreman to get on the truck, and according to plaintiff's evidence if they did not have a flagman when he reached there, they would put him to work. The foreman testified that there was no condition attached to his employment. He did get on the truck and went to work, and received his injuries as he reached there. He was carried to a hospital and died. After his injury he was put on the payroll, and appellant's compensation carrier shared the cost of the injury and funeral with a burial insurance carrier.

Appellant was under the Workman's Compensation Law of Alabama. The question of whether intestate had been employed by appellant was a jury question and properly left to the jury by the court. Under one aspect of the evidence, his status of employment was based upon a condition, and the time of its fulfillment was never reached. True, it is without dispute that no flagman had been employed and he doubtless would have been put to work had he not received the injury but that circumstance occurred before it was ascertained that the place was open and before his employment became fixed according to one aspect of the evidence.

So that we have no difficulty in reaching the conclusion that the issue of his employment was one for the jury and their verdict was fully justified by the evidence.

We will therefore now discuss the question of whether the evidence justified a finding of willful or wanton injury and death. There is no question raised as to the sufficiency of count 6. We assume the plaintiff limited the claim to willful or wanton injury and death in recognition of our guest statute. Code of 1940, Title 36, section 95.

The truck was driven with intestate on the seat with the driver some ten miles without incident. It then approached a hill in the road and turned its crest to go down to the works at the bottom of it. That distance is estimated by different witnesses as from six hundred to two thousand feet. There was evidence that as he went over the crest of the hill he was travelling between forty-five and fifty, maybe fifty-five, miles an hour. Other witnesses placed it at about twenty-five or thirty miles.

Appellant's driver of the truck testified that when he went over the hill he applied the brakes and they failed to work, and that he so told intestate; that he tried changing the gear; it was in fourth and he succeeded in getting it in third, and then threw the clutch and took it out of third and tried to get it in second or first; that to do it it was necessary to speed the motor which he did and tried every way to get it in second or first, but could not do so, but did get it back in third. And there being such a heavy load and down a steep hill with no brakes, the truck rushed down at a very fast speed; that if his brakes had worked, he could have stopped without accident. The road as he went down the hill had received the asphalt surface. At the bottom was a fleet of trucks full of slag which had come from Sulligent that morning and stopped with its right wheels on the bank and left on the hard surface turned and headed back toward Sulligent. On the left of the road and across from the slag trucks there was parked another asphalt loaded truck. At this place men were present getting ready to work on the job, and the space in the road unoccupied by the parked trucks did not permit free passage of the truck in which intestate was riding. There was a fill there and a culvert with concrete abutments. That was the view of the truck driver as he turned the crest of the hill and started down, and when, he testified, he found for the first time his brakes would not work. And that he told the boy to jump, but he did not. And as he approached the parked trucks he again told the boy to jump, and then he headed the truck to the left down the enbankment and jumped off. The boy then jumped, but was hit by something-the concrete abutment or side of the truck.

There was evidence of regular inspections of this truck before that day; that in going to Sulligent sometime before at Greensboro, report was made of needed brake repair, which was made as the evidence tended to show, and no other trouble reported. Appellant had a repair truck, expert mechanics and appliances available on the job to inspect and repair all defects on the trucks. Nothing had been observed about this one that showed a brake defect, except at Greensboro.

There was evidence of Mrs. Allen who lived on the right side of the road going down this hill. She said that her house was down from the crest of the hill around three hundred feet, or less, she was uncertain; that down toward her house on the right of the road there is a bank which gradually gets smaller and when it gets to her driveway the road is on a little incline. Another witness testified: "He (the driver of the truck) looked like he was aiming to stop and slowed down right smart at Mrs. Allen's house and then turned loose all at once and came flying down the hill."

When the driver of the truck (Prince) was being cross-examined, a predicate was laid to him as follows: "State whether or not at about noon on the day of the accident and after it had occurred you went into a restaurant run by Mrs. Wallace Donaldson on Front Street in the town of Sulligent, Alabama, and in conversation with her in the presence of Leburn Howell and others told her you were sorry about this accident and that you had no brakes on the truck." After objection was overruled, and exception reserved, the witness answered that he did not.

On rebuttal, plaintiff offered Leburn Howell and Mrs. Donaldson, separately and over objection and exception proved that on the occasion named in the predicate they heard Prince say "that he was sorry of the accident, he didn't know why they put him on this truck, it had no brakes and he had notified the boss of this in the town before they came to Sulligent."

Appellant contends that there was error in overruling the objection, because it seeks to impeach the witness on an immaterial issue, and because it was a statement made post rem by an agent as to an occurrence when in making it the agent was not engaged in his duties as such agent in that connection, and because the evidence is materially different from the question laid as a predicate.

We think the objection was well taken. The predicate did not include the statement, "he didn't know why they put him on the truck * * * that he notified the boss of this in the town before they came to Sulligent." To impeach a witness by showing contradictory statements, the statement must be called to his attention in substantially the form as made to the impeaching witness. McClellan v. Lyle-Taylor Grain Co., 205 Ala. 59, 87 So. 596; Murph v. State, 153 Ala. 67, 45 So. 208; Bridges v. State, 225 Ala. 81(12), 142 So. 56; Pittman v. Calhoun, 231 Ala. 460(7), 165 So. 391; Holmes v. Holmes, 212 Ala. 597(10), 103 So. 884.

Appellant also contends that the matter inquired about was immaterial and therefore cannot be used as impeaching. While the predicate as laid may not have been substantially as proved by the impeaching witnesses, we cannot agree that the evidence of the impeaching witnesses related to immaterial matter. The knowledge of the driver of the truck, who was the witness sought to be impeached, that the brakes were out when he started down the hill was one of the most material circumstances upon the question of his wantonness. But if it was not admissible for impeachment, was it admissible for any other relevant purpose?

Appellant invokes the general rule that when it is not a part of the res gestae, a statement made by an agent not in connection with the occurrence of the transaction to which he was referring, and not in the scope of his authority, is not admissible as evidence against the principal except for the purpose of impeaching the witness on proper predicate. 9 Ala.Dig., Evidence, p. 117, + 123(11); Louisville & N. R. R. Co. v. Carl, 91 Ala. 271, 9 So. 334; Southern Ry. Co. v. Fricks, 196 Ala. 61, 71 So. 701; Bradley v. Lewis, 211...