Hawkins v. Barber, 6 Div. 792

• Decision Date: 17 October 1935
• Docket Number: 6 Div. 792
• Parties: HAWKINS v. BARBER.
• Court: Alabama Supreme Court

163 So. 608

231 Ala. 53

HAWKINS v. BARBER.

6 Div. 792

Supreme Court of Alabama

October 17, 1935

Appeal from Circuit Court, Winston County; R.L. Blanton, Judge.

Action for damages by H.L. Barber, as administrator of the estate of J.S. Barber, deceased, against E.M.C. Hawkins and others. From a judgment for plaintiff, the named defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

J.J Curtis, of Jasper, for appellant.

Roy Mayhall, of Haleyville, for appellee.

THOMAS Justice.

The suit was against Roland Edwards, C.M. Kennedy, and appellant.

The trial was upon counts 1 and 2 charging that Edwards, acting as the agent of Kennedy and Hawkins, negligently ran an automobile against plaintiff's intestate, the vehicle injuring him.

The counts stated trespass against Edwards and trespass on the case against his alleged principals. The sufficiency of such pleading is challenged by demurrer--for joining in a single count two causes of action. Each count was for simple negligence. Holland v. Fidelity & Deposit Co. of Maryland et al., 225 Ala. 669, 671, 145 So. 131; Edwards v Russell, 222 Ala. 484, 133 So. 3; Southern R. Co. v Beaty, 212 Ala. 608, 103 So. 658; Ex parte Louisville &amp N.R. Co., 203 Ala. 328, 83 So. 52; Louisville & Nashville R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Central of Georgia R. Co. v. Carlock, 196 Ala. 659, 72 So. 261.

In Central of Georgia Ry. Co. v. Carlock, supra, it is held that the master and negligent servant may be joined in an action for injury caused by the servant's negligence.

Kennedy was eliminated by the general affirmative charge given at his request.

The verdict was rendered against Edwards and Hawkins. The notice of the appeal and summons issued to Edwards to appear in this court in compliance with section 6143 of the Code; Hawkins having appealed, and Edwards having not appealed. The case therefore stands in this court with Hawkins as the sole appellant, and is so considered. Louisville & N.R. Co. v. Shikle, 206 Ala. 494, 90 So. 900.

There was no error in overruling the demurrer to counts 1 and 2.

The question of moment, that is urged, is the refusing of the general charge requested by the defendant. When the record is carefully examined, there is no evidence that the car belonged to Hawkins, or that Edwards was employed by or was the agent of Hawkins, and that he was acting within the scope and authority of such agency. In this respect the burden of proof rested upon the plaintiff. Tullis v. Blue, 216 Ala. 577, 114 So. 185. In this case there was no evidence that Edwards was permitted to use a car belonging to Hawkins. See, also, Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380; Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87.

There is evidence that Kennedy worked for Hawkins before the time of the injury; but the acts of Kennedy in that behalf would not avail, as the jury discharged him and acquitted him of actionable negligence, and if his negligence is relied on as the servant of Hawkins, the fact of this discharge would discharge Hawkins. Walker v. St. Louis-San Francisco R. Co., 214 Ala. 492, 108 So. 388; Southern R. Co. v. Lockridge, 222 Ala. 15, 130 So. 557.

It may be said further that the parties were within the influence of the Highway Code (Michie's Code, § 1397 [49] et seq.); were approaching on an intersection, and the rule of the road in this respect is that the one on the right has the right of way (Code, § 1397 [66]); and a person entering a highway from a private road (such as was the case here) is required by the law to...