First Nat. Bank v. Sanders, 4 Div. 695.

• Decision Date: 05 October 1933
• Docket Number: 4 Div. 695.
• Parties: FIRST NAT. BANK OF DOTHAN v. SANDERS.
• Court: Alabama Supreme Court

149 So. 848

227 Ala. 313

FIRST NAT. BANK OF DOTHAN v. SANDERS.

4 Div. 695.

Supreme Court of Alabama

October 5, 1933

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

Action for damages for personal injuries by O. B. Sanders against the First National Bank of Dothan. From a judgment for plaintiff, defendant appeals.

Affirmed.

H. R McClintock, of Dothan, for appellant.

C. L Rowe, of Elba, for appellee.

GARDNER Justice.

Plaintiff and his companion, Culver, were invited by one Brock to ride on the Ford roadster which the latter was driving. The proof tends to show that upon Culver entering the car and taking his seat by Brock there was not sufficient room for another and plaintiff stood upon the running board with the knowledge and approval of Brock. While thus riding and holding on to the car top, plaintiff, by a sudden stop of the car, was thrown several feet and suffered severe injuries.

On former appeal (First National Bank of Dothan v Sanders, 225 Ala. 417, 143 So. 578), it was in effect conceded the evidence sufficed for the jury's consideration that Brock was at the time acting as the agent of the defendant in the use of the automobile, and within the line and scope of his authority, though without authority to invite another to ride, and the holding was that plaintiff, being a mere licensee, could only recover under the particular facts of this case upon the theory of a wanton or willful injury inflicted by Brock in the use of the automobile. The verdict was rested on count 6, which was for simple negligence, and the judgment was accordingly reversed.

Upon the second trial plaintiff eliminated count 6 and went to the jury on wanton count A, and recovered the judgment, from which this appeal is prosecuted.

The demurrers interposed to count A on the first trial were not reinterposed upon the second trial, and of consequence no ruling had thereon since the reversal of the judgment. Under the uniform decisions of this court, there is therefore nothing here presented for review as to the demurrers to said count, and assignments of error based thereon are without merit. Alabama City, G. & A. R. Co. v. Bates, 155 Ala. 347, 46 So. 776, 778; McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66; Marsh v. Elba Bank & Trust Co., 205 Ala. 425, 88 So. 423.

The effect of the reversal of the former judgment by this court was to annul it in its entirety, and set aside all rulings of the court on the pleadings embodied therein. Marsh v. Elba Bank & Trust Co., supra. As said in Alabama City, G. & A. R. Co. v. Bates, supra, the judgment having been reversed and the cause remanded, "the case then stood as though such judgment had not been rendered." And it is the generally accepted rule that such a judgment so reversed cannot be made the basis of res adjudicata. 34 Corpus Juris, 773-899. The plea of res adjudicata as to count A, based upon the finding of the jury on count 6 on the former trial, was therefore insufficient, and the demurrers thereto properly sustained. State ex rel. Scullin v. Robertson (Mo. Sup.) 187 S.W. 34.

The use of the word "believes" instead of the words "reasonably satisfied" in the refused charge made the basis of the third assignment of error sufficiently justifies the trial court in its refusal. St. Louis-San Francisco Ry. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433. Moreover, the substance of this charge was embraced in the oral charge of the court as well also in one of defendant's given charges.

The refused charge made the basis of the fourth assignment of error is misleading. Count 8, in the case of Crider v. Yolande Coal & Coke Co., 206 Ala. 71, 89 So. 285, cited by appellant, was a subsequent negligence count, and that authority is here inapt. Count A in the instant case is one of wantonness, as to which contributory negligence referred to in the charge is no defense. The charge was refused without error.

To constitute wantonness, it was not essential...