Herrington v. Hudson

• Decision Date: 12 May 1955
• Docket Number: 4 Div. 764
• Citation: 80 So.2d 519,262 Ala. 510
• Parties: Wallace HERRINGTON (Herrington Truck Company) v. Fletcher F. HUDSON.
• Court: Alabama Supreme Court

Page 519

80 So.2d 519

262 Ala. 510

Wallace HERRINGTON (Herrington Truck Company) v. Fletcher F. HUDSON.

4 Div. 764.

Supreme Court of Alabama.

May 12, 1955.

Chauncey Sparks, Eufaula, for appellant.

Mike Sollie, III, and Chas O. Stokes, Ozark, for appellee.

The following charges were refused to defendant:

F. If you find from the evidence in this case, that the damages were caused by some sudden breaking or giving away of some part of the truck, causing it [to] get out of control of the driver, and because of such breakage the accident occurred, then I charge you this will be an unavoidable accident.

2. If you find from the evidence that something broke on the defendants' truck just before the accident, causing his truck to swerve to the left and into the bus, then I Charge you the defendant would not be liable in this cause.

4. If you find from the evidence that a break of some part of the defendant's truck just before the collision of the two vehicles caused the accident, and the defendant's servant did all he could to prevent a collision of the two vehicles, then I charge you that the defendant would not be liable in this action, and it would be your duty to find for the defendant.

PER CURIAM.

This is an appeal by defendant from a judgment rendered for plaintiff in an action at law in which damages were awarded for personal injuries, resulting from the collision of a bus driven by plaintiff and a truck driven by defendant's servant or agent.

The issues submitted to the jury were not guilty and contributory negligence as to count 1 which is simple negligence, and not guilty as to count 2 which is for wantonness. It being understood that the demurrer to pleas 7 and 8 was sustained, therefore those pleas were not submitted to the jury. The trial court also sustained objection to defendant's offer to prove them.

Defendant's special pleas 7 and 8 are as follows:

'7. At the time and place of the alleged injury to the plaintiff, several other people, who were passengers on a public passenger bus then and there being driven by the plaintiff for his employer, Riley Bus Lines of Ozark, Alabama, were killed or injured, and many law suits were filed against this defendant and the said Riley Bus Lines for damages in the Circuit Court of Barbour County, Alabama, alleging concurrent negligence on the part of the defendants. And the defendant avers that one of said suits was styled Esther Bell, as administratrix of Howard Bell, deceased vs. Riley Bus Lines and Wallace Herrington, in which the plaintiff claimed for the death of her intestate, alleging concurrent negligence on the part of the defendants. The negligence on the part of the defendant in said cause, Riley Bus Lines, was alleged to arise from the conduct of the driver of said bus, the plaintiff, Fletcher F. Hudson, in this case. Upon the trial of said cause the court entered a judgment against the defendants, Riley Bus Lines and Wallace Herrington, for the sum of $6,000.00, which has been settled by the defendants.

'Wherefore, the plaintiff in this cause is estopped from denying he was guilty of contributory negligence in this case.

'8. The defendant adopts the first paragraph of his plea 7, and adds thereto the following to constitute his plea 8: wherefore, the defendant avers that the guilt of the plaintiff, Fletcher F. Hudson, of contributory negligence in this case has been judicially determined, and that question has become res judicata.'

The following demurrer was filed to the pleas: (3) 'Pleas Nos. 7 and 8 are faulty as a matter of law.' (4) 'Pleas Nos. 7 and 8 are not good in that the case or cases therein mentioned contain different parties and different portions in different capacities from those herein'. The record contains the following entry immediately following the demurrer: 'November 24, 1950--Demur (sic) of plaintiff's to pleas 7 and 8 are sustained'. Then follows a formal judgment reciting issue joined between the parties, 'thereupon came a jury,' etc., setting out their verdict for plaintiff with a formal judgment in favor of plaintiff for the damages assessed.

The demurrer specifies no matter of substance as a defect in the pleas, and for that reason it should not be sustained. Section 236, Title 7, Code. This statute prohibits a general demurrer at law. But in order to review a ruling on the demurrer there must be in the record a formal judgment of the court in that respect. The memorandum which is set out above is all that appears in the record as a ruling on the demurrer to pleas 7 and 8. It is not such a judgment as will support an assignment of error. Jasper Mercantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583; Tallassee Falls Mfg. Co. v. Western Ry. Co., 128 Ala. 167, 29 So. 203; Chambers v. Morris, 144 Ala. 626, 39 So. 375; Weems v. Weems, 253 Ala. 205, 43 So.2d 397.

We note there is a sufficient judgment sustaining the demurrer to pleas 2 and 3. But appellant in brief waives a review of that ruling. We are not only unable to review the sufficiency of pleas 7 and 8 without a judgment of the court in proper and sufficient form, but the principle involved cannot be presented by a ruling sustaining plaintiff's objection to evidence supporting those pleas. Evidence is not admissible unless it is pertinent to an issue made by the pleading. Cox v. Brown, 198 Ala. 638(5), 73 So. 964. The only issue as to pleas 7 and 8 is one of law attempted to be set up in a demurrer on general grounds. There is no issue of fact attempted to be joined on those pleas. The objection was properly sustained for that reason. Therefore, no ruling is presented for our review in respect to the matter contained in pleas 7 and 8.

Assignments of error 8, 12 and 13.

These assignments relate to the refusal of charges F, 2 and 4, requested by appellant. They could have been refused without error because the hypothesis stated is not for the jury to be 'reasonably satisfied' as...