Crescent Motor Co. v. Stone

• Decision Date: 11 May 1922
• Docket Number: 6 Div. 508.
• Parties: CRESCENT MOTOR CO. ET AL. v. STONE.
• Court: Alabama Supreme Court

94 So. 78

208 Ala. 137

CRESCENT MOTOR CO. ET AL. v. STONE.

6 Div. 508.

Supreme Court of Alabama

May 11, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action by Marion O. Stone against the Crescent Motor Co., S. B Williamson and G. A. Daniel. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Burgin & Jenkins, of Birmingham, for appellants.

Harsh Harsh & Harsh, of Birmingham, for appellee.

McCLELLAN J.

The plaintiff's (appellee's) minor son, while riding a bicycle on a highway, was run upon by an automobile and killed. The corporation (appellant), S. B. Williamson, and G. A. Daniel are made defendants.

Count 2 was not subject to the criticism that it undertakes to join, improperly in a single count, trespass and case, within the rule stated in Francis' Case, 109 Ala. 224, 242, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; National Baking Co. v. Wilson, 198 Ala. 90, 73 So. 436; Central of Georgia R. Co. v. Carlock, 196 Ala. 659, 72 So. 261; Aldrich v. Tyler Grocery Co., 206 Ala. 138,

89 So. 289, 17 A. L. R. 617. The count is in case, not trespass, against all three of the defendants, as for a joint tort by the three defendants, one of which was a corporation. As respected the corporate defendant's participation in the wrong, evidence of corporate authorization or ratification of the participation averred was essential to support the count. National Baking Co. v. Wilson, supra. Under this count (2), the plaintiff could not avail of the doctrine of respondeat superior to fix liability upon the corporate defendant as for the act or omission of the defendants Williamson and Daniel, or either of them; no relation of these defendants to the corporate codefendant being alleged. National Baking Co. v. Wilson, supra.

Count 3 was not offensive to the rule against the misjoinder of trespass and case in a single count. This count is in case. The "servant or agent of the defendants" (plural), to whom the count ascribes the tortious act, is therein alleged to be a joint servant or agent of the three defendants; and to sustain this averment the proof must have tended, at least, to show that the "servant or agent" causing the injury was a joint agent or servant of the three defendants. If the establishment of liability against one or two of the defendants was sought through the application of the doctrine of respondeat superior, the count should have referred the relationship to the appropriate master or employer. Central of Georgia v. Carlock, supra. Counts 2 and 3 were not subject to the demurrers interposed.

G. D. Almon was introduced as a witness for defendants. He was near the scene of the collision when it occurred. His testimony was favorable to the theory of nonliability advanced by defendants. On his cross-examination he testified that he saw defendants Williamson and Daniel "the day the coroner's investigation was held," that they were the men in the car causing the death of plaintiff's son, and that he next saw them on the day of the coroner's investigation. Plaintiff's counsel thereupon propounded this question:

"Is it not a fact that on the day the coroner's inquest was held on the fourth floor of this courthouse, and while you and the defendants, Mr. Daniel and Mr. Williamson, were out in the hallway in front of the coroner's office, that you and Mr. Daniel went off to one side and held a private conversation?"

The objections interposed, which the court overruled, were these:

"The defendants, separately and severally, objected to the foregoing question on the ground that the same called for immaterial, irrelevant, illegal and incompetent testimony; that the question sought to elicit matters having no bearing on the issues involved in the case; that the apparent purpose of the question was to prejudice the rights of the defendants before the jury in regard to an immaterial matter; that it called for matters inter alios acta, and was an attempt to lay a predicate to impeach the witness on an immaterial matter."

In answer to the question the witness said:

"We did not. Mr. Daniel and I had no conversation on that occasion which was not in the presence of the other parties sitting around in the hallway."

Like exception was reserved to a similar question and ruling during the cross-examination of the defendant Daniel. In rebuttal, plaintiff was permitted, over seasonable objection, to adduce testimony supporting the subject-matter of the quoted question to the witness Almon. The transcript recites that during the argument of the case to the jury by counsel for plaintiff this occurred:

"'Now, gentlemen of the jury, we find that on the day the coroner held his inquest as to the death of this young man, and while Mr. Daniel, one of the defendants here, and this witness, Mr. Almon, were in the hallway of this courthouse they went off together to one side, where no one else could hear, and held a private conversation, and the most charitable view you can give to this fact is that this witness Almon is an employee of the defendants.' Thereupon the defendants' attorneys objected to said above-quoted statement of plaintiff's counsel, and moved the court to exclude the same from the jury, and instruct the jury that the same was improper argument, on the grounds that it related to matters which was immaterial to the case and was not a proper subject of argument, and was intended to prejudice the rights of the defendants before the jury."

The court erred in overruling the objection to the question (quoted above) to the witness Almon. If, as appears from the brief for appellee, the question intended to elicit testimony directed to showing Almon's bias in favor of defendants, or any of them, the mere fact, if so, that the witness had a private conversation with one or more of the defendants, on the occasion of the inquest, did not, in any degree, tend to indicate bias of the witness towards the defendants or any of them. That a private conversation, with a party to a cause who later calls him as a witness, took place has no tendency or effect to show a bias that might be considered in determining the credibility of the witness' testimony. Obviously, such a conversation would not tend, even, to indicate or show any relationship, contractual or otherwise, between a party to the cause and the witness. Hence the matter sought by the quoted question to the witness Almon was entirely immaterial. The same considerations conclude to error in respect of the like inquiry of the defendant Daniel, on his cross-examination. The matter sought being wholly immaterial, it was also error to permit it to become the basis for other testimony designed to impeach Almon or Daniel in respect thereto.

The court refused these special requests for instruction:

"D. The court charges the jury that the law of this state does not require the driver of an automobile when overtaking a bicycle to pass such bicycle on the left when the person on the bicycle takes the left side and remains there."

"B. The court charges the jury that it was the legal duty of plaintiff's minor son, if he became aware of the approach of the automobile behind him, and if there were no obstructions upon the road, to turn to the right so as to allow the automobile to pass on his left.

"C. The court charges the jury that it would be negligence as a matter of law for the person riding a bicycle to willfully refuse to take to the right when being warned of the approach of an automobile behind him."

Under the evidence to which these requests are to be referred, the defendants' theory was that the plaintiff's son was moving on the left of the medial line of the road, obstructing passage on the bicycle's left, just before the plaintiff's son was overtaken by the automobile; that the car was directed to passing him on the son's right; and that, though he knew of the approach of the car, the son turned his bicycle to the right, to cross or crossing the road at such an angle as that the automobile struck the son on the bicycle. Acts 1911, p. 642, § 20, provides:

"Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, the person so operating such motor vehicles shall seasonably turn the same to the right of the center of such highway so as to pass without interference. Any person so operating a motor vehicle shall, on overtaking any such horse, draft animal or other vehicle pass on the left side thereof and the rider or driver of such horse, draft animal or other

...