Mi-Lady Cleaners v. McDaniel, 3 Div. 245

• Citation: 235 Ala. 469,179 So. 908
• Decision Date: 24 March 1938
• Docket Number: 3 Div. 245
• Parties: MI-LADY CLEANERS v. McDANIEL.
• Court: Alabama Supreme Court

179 So. 908

235 Ala. 469

MI-LADY CLEANERS v. McDANIEL.

3 Div. 245

Supreme Court of Alabama

March 24, 1938

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages for personal injuries by Mary Alice McDaniel, a minor suing by her father and next friend, W.L. McDaniel against Mi-Lady Cleaners, a partnership composed of Emily Stock and Mary Peacock, and another. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Thos. B. Hill, Jr., and Wm. Inge Hill, both of Montgomery, for appellee.

BROWN Justice.

This is an action on the case by an infant, three years old, suing by next friend, against appellant, Mi-Lady Cleaners, a partnership composed of Emily Stock and Mary Peacock, and the Nehi Bottling Company, a corporation, to recover damages for personal injuries inflicted on the plaintiff in an automobile collision between a Chevrolet automobile, alleged to be the property of Mi-Lady Cleaners, in which plaintiff "was lawfully riding," and a truck of the Nehi Bottling Company, on the intersection of Jefferson Davis and Cleveland avenues in the city of Montgomery.

The complaint stated the case in two counts; the first ascribing plaintiff's injuries to the concurring negligence of the servants, agents, or employees of the respective defendants while acting within the scope of their respective employment; and the second, to the concurring willful or wanton conduct of said agents, while acting within the scope of their respective employment.

The defendants pleaded, separately, not guilty, and the defendant Mi-Lady Cleaners pleaded orally, special pleas, 2, 3, and 4. Plea 2, to count 1, was that the mother of the plaintiff was guilty of negligence which proximately contributed to plaintiff's injury. Plea 3, to count 1, "that the plaintiff, at the time of the accident in which she alleges she was injured, was a non-paying guest in the automobile of the defendant, Mi-Lady Cleaners," and, "4. That at the time of the accident in which the plaintiff alleges that she was injured, the plaintiff was a non-paying passenger or guest in the automobile of the defendant Mi-Lady Cleaners, and that the agent of the Mi-Lady Cleaners, in driving said car, was the mother of the plaintiff."

The judgment entry recites that the plaintiff orally demurred to said pleas 2, 3, and 4 of defendant Mi-Lady Cleaners; that the court sustained the demurrer to pleas 2 and 4 and overruled the demurrer to plea 3.

The case was submitted to the jury on both counts of the complaint and plea 3 of the defendant Mi-Lady Cleaners, the court giving the affirmative charge in writing, with hypothesis, for the defendant Mi-Lady Cleaners, as to count one at its request. The jury returned a verdict for the plaintiff, on which judgment was rendered against both defendants, from which they separately appealed. However, the only appeal here prosecuted is that of the Mi-Lady Cleaners.

The statute, Code 1923, § 9479, which provides, "No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer," clearly contemplates written demurrers which can be made a part of the record, and the rulings of the trial court on oral demurrers to special oral pleas will not be reviewed on appeal. Warble v. Sulzberger Company of America, 185 Ala. 603, 64 So. 361. [Italics supplied.]

At the conclusion of plaintiff's evidence the defendant Mi-Lady Cleaners made a motion in writing that the court enter a compulsory nonsuit on stated grounds. This motion was overruled without error.

"It is the settled practice in this State, that the court cannot order a non-suit or compel the plaintiff without his consent to take a non-suit." Saunders v. Coffin, 16 Ala. 421; Hunt v. Stewart, 7 Ala. 525; Duncan, Adm'r, v. Hargrove et al., 22 Ala. 150. See, also, Central Transportation Co. v. Pullman's Palace Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55.

Said defendant also moved the court to exclude the plaintiff's evidence. This motion was likewise overruled without error. Dorough v. Alabama Great Southern Ry. Co., 221 Ala. 305, 128 So. 602.

The evidence is without dispute that the Chevrolet automobile in which the plaintiff was riding at the time of the collision between said automobile and the truck of the other defendant was being driven by the plaintiff's mother, who was at the time an employee of the defendant Mi-Lady Cleaners, and assuming that the evidence warranted an inference to be drawn by the jury that plaintiff's mother was then acting within the scope of her employment, the appellant insists that it was entitled to the affirmative charge, which it requested in writing, and which the court refused.

The contention is that under the common law the parent is immune from liability at the suit of an unemancipated minor child for injuries inflicted on such minor as a proximate consequence of the negligence or wanton or willful wrong of the parent; and in the absence of legal liability on the part of the agent or servant, the principal or master is entitled to immunity.

This doctrine of immunity was considered in the case of Owens v. Auto Mut. Indemnity Co. et al., Ala.Sup., 177 So. 133, and applied as relieving the insurer of the father from liability on a policy of insurance, where by the terms of the policy, it undertook to hold the insured harmless against "all sums which the Assured shall become liable to pay." (Italics supplied.) There it was held that the father being immune from liability at the suit of the minor or his personal representative, in the absence of statute, for negligently or wrongfully causing the death of the insured's child, the wrongful death was not within the coverage of the policy. That case does not support the appellant's contention.

Maine v. James Maine & Sons Company, decided by the Supreme Court of Iowa, December 11, 1924, reported in 198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161, cited by appellant, is regarded as the pioneer case extending the common-law doctrine of immunity, applicable to the servant, to the master on the ground that the servant not being liable for his negligence or wrongful conduct, under the facts of that case, the master was not liable because the master could not sue the servant and hold him liable.

The comment in the annotation following the report of that case in 37 A.L.R. 165, exposes the want of logic in the court's opinion. It is here reproduced: "This seems to be a case of first impression, and is not without difficulty. The court apparently considers that as, where the liability of the master logically is grounded solely on the negligence of the servant, the master cannot be liable where the servant is not negligent, therefore, if there can be no recovery by the plaintiff against the servant, there can be no recovery against the master, and points out that, in cases where the master is held for the negligence of the servant, he has a recovery over against the servant. It is conceived, however that the liability of the master does not rest at all on the theory of his recovery over against the servant, but on the fact that the servant, in doing the master's business, committed negligence to the injury of a third party. If he committed no negligence the master is logically not liable, in cases which rest solely on the servant's negligence."

It has been repeatedly held here, in cases where the master and servant were sued jointly and the complaint charged the damnifying result solely to the negligence or wrongful conduct of the servant, and on the trial the servant was acquitted of negligence or wrongdoing, a judgment against the master could not be sustained. This, on the theory, not that the master was denied the right to recover over against the servant, but on the ground that the sole basis of liability in such case was the negligence or wrongdoing of the servant, imputed to the master under the doctrine respondeat superior, and the acquittal of the servant of wrongdoing, conclusively negatives liability of the master. This is the effect of the holding in New Orleans & Northeastern Railroad Company v. Jopes, 142 U.S. 18, 12 S.Ct. 109, 35 L.Ed. 919, and the dictum in Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342.

There is nothing in the decision that sustains appellant's contention that though the agent or servant of the appellant was guilty of negligence or willful or wanton conduct, while acting...