Appeal
from Circuit Court, Madison County; Paul Speake, Judge.
Action
for damages by Minnie Poole against R.J. Lowe and T.G
Melson, as executors of the estate of Shelby S. Fletcher
deceased, for personal injuries sustained while being
transported in a trailer attached to a motor vehicle to
cotton fields of Shelby S. Fletcher to pick cotton. From a
judgment for plaintiff, defendants appeal.
Affirmed.
THOMAS
Justice.
The
suit in several counts was for personal injury.
The
trial was had on counts 4 and A to E, inclusive. The same
breach of contract is set up in each count, being
substantially that, while plaintiff was riding in a trailer
to a motor vehicle provided by defendants for transporting
plaintiff to a place of work for defendants, the trailer was
overturned by its insufficient attachment to the motor
vehicle, whereby she received the injuries for which suit is
sought to be maintained, and which injuries were the material
and proximate result of the breach of defendants'
contract to safely transport plaintiff to the place of work.
The
right of affirmative instruction requested by defendants was
decided in Poole v. Fletcher, 233 Ala. 54, 57, 169
So. 868, and authorities cited. McMillan v. Aiken et
al., 205 Ala. 35, 88 So. 135. There was no error.
The
material statement made by Newman Russell, in the first
trial, as to what occurred at the truck in which the cotton
pickers were supposed to be and were transported to the place
of work, was the same in substance as his statement now
before us, with the exception of his reference to insurance.
This portion of Russell's statement will be referred to
below.
On the
former trial defendants moved to exclude Russell's
statement, which motion was sustained. The ruling of the
court was assigned as error and held reversible, and the
several decisions on the scintilla rule, as affecting the
giving of affirmative charges, are cited. Poole v.
Fletcher, 233 Ala. 54, 169 So. 868; Morgan-Hill
Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; McMillan
v. Aiken et al., supra.
In the
instant record Maddox stated:
"
'I got on the trailer and started to Mr. Fletcher's
cotton field at the time Miss Minnie Poole was hurt. I got
on the trailer in front of the First National Bank here in
Huntsville. I was fixing to get on the truck and I seen Mr.
Fletcher and I hollered at Mr. Fletcher and told him to
bring his bank book; that he would need it to pay us off.
He throwed his hand up that way (indicating) and went on
off. From the looks of the crowd, I reckon there must have
been forty or fifty on the trailer. We started to the
field, but I didn't get there. We had a wreck out
there. *** I examined the trailer there afterwards to see
how it was attached to the motor. There was a place there
for bolts to go through, and the bolts was supposed to have
taps on them, but there was no taps at all on them, and
when the trailer tilted it come out of them holes; and
there was nothing in the world to hold the trailer on;
where the bolts went through and where there should have
been washers and taps, there wasn't any there, and
nothing to keep it from turning over. Taps were missing on
both sides.'
"The
witness was then asked the following question:
"
'The way the trailer was attached to the motor
chassis, or motor vehicle, in the event the trailer
turned over, would that turn over the motor vehicle?'
"
The
witness Mullins in the last trial said:
"
'I was on the trailer that day. I went out to the cotton
field of Mr. Fletcher the day before, and picked cotton. I
got on the truck over at the corner where the First National
Bank is; the same place I got on the truck the day the
accident happened. The day before when I went out there I
picked cotton for Mr. Shelby Fletcher. I saw Mr. Fletcher out
there, he paid us off that night. Mr. Newman Russell was in
the car with him and showed us where to pick the cotton and
weighed the cotton. Mr. Melson went with us in the morning
and gave us pick sacks to pick the cotton. The cotton
wasn't so good that day. Mr. Fletcher asked us all to
come back the next morning. I told him I could get better
cotton to pick, and he told me to come back and he would put
us in better cotton the next day and furnish a good way to
come. He paid me sixty cents, I believe it was. He said to
get all others we could to come out the next day and he would
furnish transportation and pay us sixty cents for the cotton.
The car Mr. Fletcher was in was right in front of the house.
Mr. Poole was out in the field the day before and Mr. Maddox
was there. I started back the next day and got on the trailer
or truck over here at the bank corner. I took it to be the
same trailer. Newman Russell was there that morning that the
accident happened.'
"The
witness was asked the following question:
"
'Did he say anything?'
"To
this question the defendant duly objected, the Court
overruled the objection and said that he would let the
evidence in for the present, subject to be ruled out if not
properly connected. To which action
of the Court, defendant then and there duly excepted.
"Answering
said question, the witness testified:
"
'He told me if I wanted to go and pick cotton to get on
the trailer; that I couldn't get in the cab; that the
insurance people would kick, and told me to get on the back
end, and then he hollered "Every body get on to go to
Fletcher farm to pick cotton." '
"Continuing
his testimony, the witness Fred Mullins testified:
"
'They loaded up. He said the Insurance Company would
kick if there was three sitting in the cab and I got on
the back. There was a good many got on the trailer that
morning and we started out towards the Fletcher farm, the
same direction we went the day before, the same route. I
can't tell how far we went. We got to where you turn
off to go to Capshaw, I believe,--about twelve miles. We
were traveling on the highway on our way out there. The
trailer turned over when we went to make that turn. ***
Minnie Poole was there.' "
On
cross-examination, this witness continued: "Newman
Russell told me about the cotton picking job, told me I could
get a job picking cotton out there. A good many went out
there that morning before the wreck. I saw Mr. Fletcher the
morning before the wreck. He told me he wanted me to go to
his farm and I could get a job picking cotton. I can't
tell you who drove the truck, a white man the day before and
a colored man the day of the wreck."
It will
be noted that on this appeal the reference in the evidence as
to how the truck should be loaded as required by the
insurance company was adverted to. This will be referred to
later.
The
witness Webb testified as follows:
"
'I was on the trailer the day Minnie Poole was injured. I
got on the trailer the day before. It was parked over here at
the First National Bank the day before when I got on, at the
same place I got on the second morning. The day before when I
was out in the fields I saw Mr. Shelby Fletcher. He was out
there. I picked cotton that day. I reckon Mr. Melson paid me
for it that day. Mr. Fletcher set in the front seat and
figured it and Mr. Melson was in the back seat. Mr. Fletcher
figured the amount due us and Mr. Melson paid ...
