Gardiner v. Solomon

• Citation: 75 So. 621,200 Ala. 115
• Decision Date: 19 April 1917
• Docket Number: 8 Div. 995
• Parties: GARDINER v. SOLOMON.
• Court: Alabama Supreme Court

75 So. 621

200 Ala. 115

GARDINER v. SOLOMON.

8 Div. 995

Supreme Court of Alabama

April 19, 1917

Rehearing Denied May 24, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Suit by Mrs. D.A. Solomon against Mrs. Cora Gardiner for damages for the death of her intestate, alleged to have been caused by an automobile belonging to Mrs. Gardiner. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The first count alleges that defendant's agent, Thomas Gardiner, wrongfully caused the death of Charlie Solomon, by wrongfully propelling, in the course of his agency, against said decedent, a powerful and ponderous automobile, the property of defendant, which defendant was, through said agent, then and there engaged in operating. (Then follow the details of the accident resulting in decedent's death.)

Count 2 alleges that plaintiff is the widowed mother of Charles Solomon, deceased, and that defendant's agent, Thomas Gardiner, wrongfully and negligently caused the death of said Charlie Solomon, by wrongfully and negligently propelling against decedent, in the course of his employment, a powerful and ponderous automobile, the property of defendant, which defendant's said agent was then and there engaged in operating in the course of his employment.

Count 3:

Plaintiff claims of defendant the sum of $15,000, for that heretofore, to wit, on or about August 21 or 22, 1915, the defendant was the owner of a motorcar of tremendous weight and great power, which she allowed her son, Thomas, to operate. The said Thomas, on the day and date aforesaid, was and long had been, a careless, indifferent, heedless, and reckless driver of such car, so that said car in his hands was a dangerous and deadly agency, of which facts defendant had been duly informed; yet, with information of such facts she allowed her said son to propel said car along the public streets of New Decatur, Ala., at will, and intrusted its management and operation to him, and while, on the day and date aforesaid, he was engaged in running said car along a highway, to wit, Second avenue, in New Decatur, Ala., in the very heart of the business section of said city of over 6,000 people, and in broad daylight, the said Thomas so negligently, heedlessly, recklessly, wrongfully, and indifferently conducted himself with respect to said car that he ran same against plaintiff's minor son, Charlie Solomon; and he, said defendant's said son, by means of such death-dealing instrumentality, so crushed and pushed rolled, and dragged plaintiff's said minor son that he very soon died, and, his father being dead, plaintiff therefore sues. And plaintiff avers that at the time of said injury, defendant's said son was using said car by defendant's consent and acquiescence; she having been informed of his dangerous proclivities in connection with the same as aforesaid.

Count 4:

Plaintiff claims of defendant the sum of $15,000, for that heretofore, to wit, on or about August 21 or 22, 1915, defendant was the owner of a motorcar of tremendous weight and great power, which she allowed her son, Thomas, to operate. Said Thomas, on the day and date aforesaid, was, and long had been, a careless, indifferent, heedless, and reckless driver of such car, so that said car in his hands was a dangerous and deadly agency, of which facts defendant had been duly informed; yet, with information of such facts, she allowed her said son to propel said car along the public streets of New Decatur, Ala., at will, and procured indemnity insurance as a mode of protecting or reimbursing her against damages that might be recovered or recoverable by reason of her son's disastrous operation of said car, he being, with her consent, named on her application for such insurance, or in the policy, or in both, as the operator or one of the operators of said car, the name of the insurance company being to plaintiff unknown, and while, on the day and date aforesaid, defendant's said son was engaged in running said car along a highway, to wit, Second avenue, in New Decatur, Ala., in the very heart of the business section of said city of over 6,000 people, and in broad daylight, said Thomas so negligently, heedlessly, recklessly, wrongfully, and indifferently conducted himself with respect to said car that he ran same against plaintiff's minor son, Charlie Solomon, and he, defendant's said son, by means of such death-dealing instrumentality so crushed and pushed, rolled, and dragged plaintiff's minor son that he very soon died, and, his father being dead, plaintiff therefore sues. And plaintiff avers that at the time of said injury defendant's said son was using said car by defendant's consent and acquiescence, she having been informed of his dangerous proclivities in connection with the same, as aforesaid.

The pleas referred to are the special pleas of contributory negligence, to which demurrers were sustained before amendment; the negligence alleged being that deceased stepped off a moving street car at a place where passengers were not accustomed to alight, and so close in front of the moving automobile that it was impossible to stop same by the exercise of all means known to careful and skillful drivers of automobiles, all of which means were exercised to stop the automobile.

Replication 2 is that, after Charlie became in a condition of peril from which he could not escape, defendant Gardiner saw said peril, and after so seeing said peril, and after seeing that said Charlie Solomon could not escape, said Thomas Gardiner by prompt and reasonable efforts could have stopped, checked, or turned aside said machine, so as to have avoided hitting said Charlie Solomon, but that he negligently failed to do so.

Eyster & Eyster, of Albany, for appellant.

E.W. Godbey, of Decatur, for appellee.

ANDERSON C.J.

Counts 1 and 2 proceed upon the theory of respondeat...