Donaldson v. Foreman

• Decision Date: 16 April 1925
• Docket Number: 4 Div. 201
• Citation: 213 Ala. 232,104 So. 406
• Parties: DONALDSON v. FOREMAN.
• Court: Alabama Supreme Court

104 So. 406

213 Ala. 232

DONALDSON v. FOREMAN.

4 Div. 201

Supreme Court of Alabama

April 16, 1925

Rehearing Denied May 28, 1925

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Action for damages by H.C. Foreman against Kinney Donaldson. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

E.O Baldwin, of Andalusia, for appellant.

A Whaley, of Andalusia, for appellee.

THOMAS J.

The suit was for damages to an automobile sustained in a collision with another automobile. The pleadings were in short by consent.

The demurrer to the complaint challenged its sufficiency on the ground that it was not averred that the agent or employee of defendant, having charge or control of said car, was acting within the line and scope of his employment, that the grounds of recovery are disjunctively averred, and that each alternative averment is not sufficient to support a recovery on the facts averred as showing actionable negligence.

It is settled law that the principal is not responsible in damages for the acts or omissions of him who is his agent, servant or employee, unless at the time of the injury such person was acting within the line and scope of his employment by the defendant. Morrison v. Clark, 196 Ala. 670, 673, 72 So. 305; Alabama Power Co. v. Conine, 207 Ala. 436 93 So. 22; Alabama Power Co. v. Stogner, 208 Ala. 666, 669, 95 So. 151. And it is required that the proof must also support this necessary averment to sustain a verdict predicated on such agency. Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16.

It is also required, as a necessity of good pleading, that, where a complaint sets out the grounds of recovery in the disjunctive, each alternative allegation must be sufficient. National Park Bank v. L. & N.R.R. Co., 199 Ala. 192, 74 So. 69. In this last respect it is averred, in the second count, that--

"Defendant, or his agent, servant, or employee, while in charge of and operating the automobile of defendant over, along, and about the public highways, *** did wantonly or willfully run, or so operate, said automobile that said automobile ran against, hit, or struck the automobile of the plaintiff."

The alternative averment, "or struck the automobile of the plaintiff," must be taken in its context so as to refer to the averment of wantonly or willfully running or operating, etc. It was not subject to the demurrer that both alternative averments did not state a cause of action.

The questions, sought to be presented by assignments of error predicated on rulings of the lower court on demurrer, are emasculated by the record certified upon return to certiorari. There it is shown the demurrers were not insisted upon; and it is not shown that rulings of the court were directed thereto.

The evidence shows that defendant Donaldson was not present at the collision. In response to the question, "Go ahead and tell the jury just your recollections, the substance of what was said," referring to the subsequent conversation between plaintiff and defendant, plaintiff's witness Clark answered, "I remember Mr. Donaldson agreeing to have something done to repairing Mr. Foreman's car." The defendant had objected, and he then moved to exclude on the ground that the evidence called for was illegal, irrelevant, incompetent, and immaterial. In overruling the objection to the foregoing question and the motion to exclude the answer, the court committed error. It tended to impute blame to defendant for the acts of his son driving his car.

The lower court...