Jefferson County Burial Soc. v. Cotton

• Decision Date: 30 October 1930
• Docket Number: 6 Div. 544.
• Citation: 222 Ala. 578,133 So. 256
• Parties: JEFFERSON COUNTY BURIAL SOC. ET AL. v. COTTON.
• Court: Alabama Supreme Court

133 So. 256

222 Ala. 578

JEFFERSON COUNTY BURIAL SOC. ET AL. v. COTTON.

6 Div. 544.

Supreme Court of Alabama

October 30, 1930

Rehearing Denied April 9, 1931.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action under the homicide act by Amelia Cotton, as administratrix of the estate of Sid Cotton, deceased, against the Jefferson County Burial Society and the Bradford Funeral Home. From a judgment for plaintiff, defendants appeal.

Affirmed.

Instructions stating mere abstract propositions of law are properly refused.

Assignments of error 9 and 10 assert error in the following rulings:

"9. In sustaining the plaintiff's objection to the defendant's question to witness Dowdell: 'I will ask you whether or not this man Cureton had any right at all to take that ambulance west on 8th Avenue at that time?'

"10. In sustaining plaintiff's objection to the defendant's question to the witness Bradford: 'I will ask you to state whether or not on this occasion you gave Cureton any right or instructions or authority to drive that ambulance back?"'

The following portion of the oral charge embraces excerpts to which exceptions were reserved:

"The court charges you that a person driving a vehicle,-in this case it was an ambulance,-is presumed to be the agent servant or employee of the owner thereof, and is presumed to be acting within the line and scope of his employment as said agent, servant or employee during the driving of said ambulance. That is a presumption against the owner of the ambulance who lets other people drive the ambulance. The presumption is those driving it are agents of the owner, acting within the line and scope of his employment.

"That presumption may be overcome by evidence to the satisfaction of the jury. In other words, if the jury believes from the evidence that the ambulance driven in this case belonged to the defendants, or either one of the defendants, the party driving said ambulance at the time of the injury would be presumed to be the agent of the owner of the ambulance, and that he was acting within the line and scope of his employment. That would be a presumption which is overcome, might be overcome or can be overcome by evidence in dispute, which should be-which evidence must reasonably satisfy the jury as to whether or not they were agents."

The following charge was given for plaintiff:

"X. The Court charges the jury that a person driving an ambulance or automobile is presumed to be the agent, servant or employee of the owner thereof and presumed to be acting within the line and scope of his employment as such agent, servant or employee and to overcome such presumption the burden is upon the owner of such automobile, or ambulance to reasonably satisfy you by the evidence that the contrary is true."

The following charges were refused to defendant:

"1B. The Court charges the jury that the jury must take the law from the Court and not from statements of counsel or books read by counsel to the Court."

"6. XY. If you believe the evidence in this case you can not find that defendant Jefferson County Burial Society owned or controlled the said ambulance at or about the time of the accident; or that said defendant ever owned any ambulance."

"C. If you believe the evidence in this case, you must find that said Dowdell or Cureton were not in the employment of the Jefferson County Burial Society, Inc. at that time."

The further facts are stated by BROWN, J.

Statement.

This action is under the Homicide Act (Code 1923, § 5696), and is predicated on the alleged wrongful act or negligence of the defendants, their servants or agents, in causing the death of plaintiff's intestate. The first count of the complaint ascribes the death to the negligence of "the defendants," and the second to wanton conduct of the defendants' agents or servants while acting within the line and scope of their employment.

The evidence adduced by the plaintiff tended to show that while said intestate was crossing a public street in the city of Birmingham, he was run down by an automobile ambulance, operated by one James Cureton, inflicting upon said intestate injuries which caused his death.

The evidence is without dispute that the ambulance was owned by the defendant the Bradford Funeral Home, who employed a chauffeur to operate the ambulance. There was also evidence going to show that Joe Leonard, James Cureton, and Charles Dowdell were all ambulance drivers and had similar duties; that the three hearses used in connection with the business were combination hearses and ambulances, and as a general rule no one of the three ambulance and hearse drivers was placed in charge of any particular vehicle, but any one of the three would drive as best suited the convenience of the occasion.

The evidence goes to show that the two defendant corporations were organized by E. A. Bradford, who owned practically all of the capital stock of both corporations, and was at the time president and general manager of both corporations. The principal office and place of business of both corporations was 616 North Sixteenth street, Birmingham, Ala., and both used the same telephone. Bradford, as the official head and general manager of the corporations, employs the servants of both, and directs them in the performance of their duties.

The Jefferson County Burial Society made contracts with different persons in the form of insurance, that it would inter the body after death, and these contracts were carried out by the other defendant.

Bradford testified that Dowdell, Cureton, and Leonard were employees of the Bradford Funeral Home, and were in no way connected with the Jefferson County Burial Society. But there is some evidence to the contrary. Dowdell testified: "My general duties there with the defendants was to drive. That is not all I was supposed to do. I was supposed to do anything that came to hand in the funeral business. *** There were three of us working down there at this time. Joe Leonard, James Cureton and myself were working. There is just three men inside the house there. We three had similar duties I mean. There was no other ambulance drivers besides we three. They didn't have but that one ambulance. We have got hearses. We have three hearses and ambulances. We all drive them too. Three of us have got three hearses and ambulances together. We did not call up Bradford Funeral Home or Jefferson County Burial Society before we came back that day from this call. *** I was working for E. A. Bradford-Bradford Funeral Home. Probably the Jefferson County Burial Society and Bradford Funeral Home was the same, probably so. That is who Cureton was working for too. *** He was an ambulance driver for some of the defendants at that time; he was employed by the same man." Bradford testified that Cureton's regular work was embalming, and "the people that came in the Jefferson County Burial Society policies were embalmed by James Cureton."

It was also in evidence that the Bradford Funeral Home, Inc., was dissolved after this suit was brought.

A short time before the catastrophe in question, a call was made over the telephone at 616 North Sixteenth street, requesting that an ambulance be sent to bring some sick person to the hospital. Bradford testified that he answered the 'phone and sent Dowdell and Cureton to answer the call, instructing Dowdell to drive the ambulance and Cureton to go and assist him in transporting the sick person to the hospital.

Dowdell's testimony tends to show that Bradford was not in the office and that Cureton answered the 'phone, and that Dowdell and Cureton immediately went to answer the call and carried the sick person to the hospital, Dowdell driving the ambulance. After this was done, Dowdell, instead of proceeding back to 616 North Sixteenth street along Fifth or Sixth avenue, turned aside and drove the ambulance down Eighth avenue to his home, and there left the ambulance to get supper, leaving Cureton in the ambulance. Immediately thereafter Cureton drove the ambulance west on Eighth avenue, for what distance or purpose does not appear, and then turned east driving in the direction of 616 North Sixteenth street, and while so doing at a high rate of speed ran upon and injured plaintiff's intestate.

The evidence further goes to show that these drivers had been instructed by Bradford to return to the defendant's place of business when their mission was fulfilled-this was a standing order.

The defendant offered evidence going to show that plaintiff's intestate was stricken by another automobile and thrown against the side of the ambulance with such force as to break the handle off the front door.

Erle Pettus, of Birmingham, for appellants.

Ewing, Trawick & Clark, of Birmingham, for appellee.

BROWN, J. (after stating the facts as above).

The appellants' major contentions are: (1) That the evidence shows without room for adverse inference that Dowdell, the driver of the ambulance, had stepped aside from the course of his employment in using the car for purposes of his own, and...