Cox v. Howard Hall Co.
| Decision Date | 03 August 1972 |
| Docket Number | 6 Div. 877 |
| Citation | 265 So.2d 580,289 Ala. 35 |
| Parties | T. J. COX v. HOWARD HALL COMPANY, Inc. |
| Court | Alabama Supreme Court |
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellant.
London, Yancey, Clark & Allen and Max Hudson, Birmingham, for appellee.
This is a suit by T. J. Cox against Howard Hall Company, Inc., Floyd Johnson and Robert H. Hayes to recover damages for personal injuries, property damage and loss of earnings which Cox alleged he sustained when a Ford truck which he was driving was hit from the rear by a large Dodge truck-tractor driven by Robert H. Hayes.
The defendants will usually be referred to hereinafter as Hall, Johnson and Hayes.
Liability was sought to be fixed on Hall and Johnson under the doctrine of Respondeat superior.
At the conclusion of the evidence offered by the plaintiff and the defendants, the trial court gave at the written request of the defendant Hall the general affirmative charge without hypothesis.
The jury then returned a verdict in favor of the plaintiff against Johnson and Hayes in the amount of $30,000. The jury found in favor of Hall in accordance with the trial court's instruction. Judgment was in accord with the verdict.
From the judgment in favor of Hall the plaintiff, Cox, brings this appeal and argues only his assignment of error to the effect that the trial court erred to a reversal in giving the affirmative charge without hypothesis in favor of the defendant Hall, contending that there was sufficient evidence to have required submission to the jury of the question as to whether negligence of Hayes was imputable to Hall under the doctrine of Respondeat superior.
It is settled that where by the undisputed evidence plaintiff has not shown that he is entitled to recover on his complaint, a court may direct a verdict for the defendant and it is immaterial whether the jury believe the evidence or not. In either event, plaintiff has not proven his complaint. Cannon v. Louisville & N.R. Co., 252 Ala. 571, 42 So.2d 340; O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580, and cases cited; Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So.2d 464; Cooper v. Providence Hospital, 272 Ala. 283, 130 So.2d 8; Jessup v. Shaddix, 275 Ala. 281, 154 So.2d 39; Atlantic Coast Line Railroad Co. v. Vise, 262 Ala. 329, 78 So.2d 661.
On and prior to July 15, 1969, the defendant Johnson owned the Dodge truck-tractor which, when operated with a trailer, was capable of hauling freight. Hall was engaged in the business of hauling freight as an interstate motor common carrier under Certificates of Public Convenience and Necessity from the Interstate Commerce Commission.
On July 15, 1969, Johnson and Hall executed an instrument wherein Johnson leased to Hall the Dodge truck-tractor which was being driven by Hayes at the time of the accident out of which this litigation arises. In the lease, Johnson is referred to as the Contractor and Hall as the Company.
We will not set out the lease In extenso, but will summarize some of its provisions and quote other provisions.
Paragraph 2 of the lease provided that Johnson 'hereby leases, rents and delivers unto the Company, for use in the conduct of its operation, the following described motor vehicle equipment: (truck description)'; that Johnson would furnish all labor to operate the truck, and that said truck and labor should be available to Hall at all times during the term of the lease.
Paragraph 3 provided that Johnson would be paid for furnishing the truck, labor and other services on a mileage (weight) percentage formula. Paragraph 4 provided that no freight would be hauled by the truck without the knowledge and consent of Hall. Paragraph 5 provided that Johnson warranted the vehicle to be in good, safe operating and mechanical condition, in compliance with applicable regulations and that Johnson would so maintain the vehicle during the term of the lease. Paragraph 6 of the contract provided that Johnson would pay the entire cost of maintaining and operating the vehicle, including wages and other payments due by his employment of drivers or other labor. Paragraph 7 provided that if Hall was required to pay any cost of operating or maintaining the vehicle, Johnson would reimburse Hall, or Hall could elect to withhold sufficient money due Johnson under the contract to cover such disbursements. Paragraph 8 contained other provisions concerning the right of Hall to withhold money to cover expenditures made by Hall but which might be charged to Johnson's account.
Paragraph 9 provided in part as follows:
'Contractor (Johnson) agrees to furnish the Company, at his expense, a copy of his driver's correct medical certificate, a copy of all Driver's Daily Logs, a copy of the driver's Mileage Route Summary, and such other reports or forms as may be required by the Company, the ICC or other regulatory bodies. . . .'
Paragraph 10 required Johnson to reimburse Hall for certain other costs or expenses or collections made by 'any of his agents, servants or employees' which were not properly remitted.
Paragraph 11 provided:
Paragraph 12 required that Johnson report to Hall by telephone immediately after the occurrence any accidents and as soon as possible thereafter submit a written report covering the occurrence. Paragraph 13 required Johnson to be at the service and disposal of the Company before and after the termination of the lease period to assist Hall in the defense of claims, suits, etc., for loss of or damage to any shipment or for any other cause arising in connection with the agreement. Paragraph 14 required Johnson to purchase fuel in the minimum amounts required by states through which the vehicle passed. Paragraph 15 required Johnson to be solely responsible for damage to or loss of the leased equipment regardless of cause, and contained a release in favor of Hall for any damage which might occur to the equipment.
Paragraph 16 provided in part as follows:
Paragraph 17 reads:
Paragraph 18 provided for termination of the agreement on account of any breach by Johnson. The concluding Paragraphs 19 and 20 set out the contract term, cancellation provisions, etc.
Leases more or less similar to the one entered into between Hall and Johnson have been before this court on previous occasions. Stevens v. Deaton Truck Line, Supra; Deaton Truck Line, Inc., v. Acker, 261 Ala. 468, 74 So.2d 717; Hays v. Deaton Truck Line, 264 Ala. 442, 87 So.2d 825; Anderson v. Howard Hall Co., 272 Ala. 466, 131 So.2d 417; Thomas v. Hubbert, 280 Ala. 302, 193 So.2d 746.
In the Stevens case, Supra, the truck-tractor involved in the accident was being driven by its owner, one Roberts, who had leased it to Deaton under a written lease agreement similar to but not identical with the lease between Johnson and Hall in this case. We interpreted the record as indicating that the trial court concluded that under the terms of the lease and the evidence as it related to the manner in which the parties operated under it, the relationship of master and servant existed between Deaton and Roberts. Nevertheless the trial court directed a verdict in favor of Deaton on the ground that the evidence was not sufficient to show that at the time of the accident Roberts was acting in the line or scope of...
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