Crescent Motor Co. v. Stone

• Decision Date: 26 June 1924
• Docket Number: 6 Div. 938.
• Parties: CRESCENT MOTOR CO. ET AL. v. STONE.
• Court: Alabama Supreme Court

101 So. 49

211 Ala. 516

CRESCENT MOTOR CO. ET AL. v. STONE.

6 Div. 938.

Supreme Court of Alabama

June 26, 1924

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by Marion O. Stone against the Crescent Motor Company, S. B Williamson, and G. A. Daniel. Judgment for plaintiff, and defendants appeal. Affirmed.

Burgin & Jenkins, of Birmingham, for appellants.

Harsh Harsh & Harsh, for Birmingham, for appellee.

BOULDIN J.

The suit is by the father to recover damages for the wrongful act of defendants causing the death of plaintiff's minor son. Code 1907, § 2485.

This is the second appeal. The decision on former appeal is reported in 208 Ala. 137, 94 So. 78. We there held that counts 2 and 3 of the complaint were not subject to the demurrer interposed. We adhere to that ruling.

It was also held that the evidence, and reasonable inferences therefrom, tended to show a joint liability on the part of defendants Williamson and Daniel, justifying a refusal of the affirmative charge on behalf of defendant Daniel. This holding was rested, as shown in the opinion, on certain testimony of Daniel, as a witness, tending to show a joint control of the automobile at the time of the collision resulting in the death of plaintiff's minor son.

The record now before us shows, by bill of exceptions, the testimony of the witness Daniel on the latter trial, and also affirmatively shows that the stenographic report of his entire testimony on the former trial was offered in evidence and read to the jury, and, further, that only a small part of it is set out in the present bill of exceptions. It thus affirmatively appears that not all the testimony before the jury is before us, notwithstanding the recital to that effect at the end of the bill of exceptions. It follows that the general affirmative instructions refused to defendants, and each of them, are not subject to review.

The court, at the request of plaintiff, gave the following charge in writing:

"When two or more people are engaged in a joint adventure, each is responsible for the torts committed by the other while acting directly in the business of the joint enterprise. If the jury are reasonably satisfied from the evidence that defendant Daniel and defendant Williamson were taking the Cole Eight car to Tuscaloosa together for the Crescent Motor Company, and that part of the time one was driving and part of the time the other was driving the car, and that both had equal control of the car, then the court charges the jury that it is open to the jury to find from the evidence that both Williamson and Daniel were engaged in a joint enterprise and each would be responsible for the driving of the car, whether the one or the other was actually at the wheel at the particular moment that the accident happened."

This charge is dealing only with the question of joint liability of Williamson and Daniel. The liability declared does not grow out of the relation of each to a common employer, the Crescent Motor Company, but out of their relations to each other in the operation of the car at the time of the accident. The basic fact is joint and equal control of the operation of the car, so that the man at the wheel was acting for the other as well as himself.

The charge does not invade the province of the jury, but declares it open to them to find joint liability, if reasonably satisfied thereof from the evidence. If the form of statement was liable to mislead the jury, an explanatory charge was the...