Huey v. Dykes, 6 Div. 853

• Court: Supreme Court of Alabama
• Writing for the Court: SAYRE, J.
• Citation: 82 So. 481,203 Ala. 231
• Decision Date: 05 June 1919
• Docket Number: 6 Div. 853
• Parties: HUEY v. DYKES.

82 So. 481

203 Ala. 231

HUEY
v.
DYKES.

6 Div. 853

Supreme Court of Alabama

June 5, 1919

Rehearing Denied June 30, 1919

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by G.H. Dykes, administrator, against Sam Huey. From judgment for plaintiff, defendant appeals. Affirmed.

Tillman, Bradley & Morrow, of Birmingham, for appellant.

Allen, Fisk & Townsend, of Birmingham, for appellee.

SAYRE, J.

The accident by which plaintiff's intestate lost his life resulted from a collision between an automobile driven by defendant and a bicycle ridden by intestate at a street crossing to which the parties approached from the two streets. The complaint alleged that defendant did negligently cause or allow said automobile to be run upon or against intestate, causing his death. The demurrers to pleas 2, 4, and 5 were properly sustained, we think, for that the defense therein stated proceeded upon the theory that it was the duty of intestate to keep a special lookout for defendant's automobile, whereas no such duty rested upon intestate in his use of the highway, but only the general duty to exercise [82 So. 482.] due care. Adler v. Martin, 179 Ala. 97, 59 So. 597.

Pleas 7, 9, 10, and 11 were pleas of former recovery. These pleas set out the record of an action in the federal court in which the present plaintiff, alleging that the present defendant had acted as the agent or servant of the Barrett Company, a corporation, in causing the death of plaintiff's intestate, recovered judgment against the corporation on account of the identical wrong and injury alleged in this cause. Some of these pleas showed that the Barrett Company had paid the amount of the recovery to the clerk of the federal court, and two of them alleged that plaintiff had not offered to return to the Barrett Company the amount so paid. Demurrers were sustained which took the ground that these pleas, showing that the defendant and the Barrett Company were joint tort-feasors, failed to show that plaintiff had accepted the proceeds of the action in the federal court.

The court, ruled advisedly. It is true that the master who is held to pay damages for an injury inflicted on a third party by the wrong or negligence of his servant has a right of action to recover the amount of such damages from the servant. Labatt, Mas. & Serv. § 2595. And from this premise appellant, affirming that the judgment against the Barrett Company became a lien on all of its...