Mallory S.S. Co. v. Druhan
| Decision Date | 10 February 1920 |
| Docket Number | 1 Div. 345 |
| Citation | 84 So. 874,17 Ala.App. 365 |
| Parties | MALLORY S.S. CO. v. DRUHAN. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Action by Nicholas Druhan, for the benefit of the Georgia Casualty Company, against the Mallory Steamship Company, to recover an indemnity paid because of injury to one of the servants of the plaintiff. Judgment for plaintiff, and defendant appeals. Affirmed.
The facts and the exceptions to the evidence sufficiently appear from the opinion of the court.
The following charges were given for the plaintiff:
Assignment 58: "The court charges the jury that if Mr Du Bois, acting under authority from the Mallory Steamship Company, contracted with Nicholas Druhan to load the Shawmut then it is utterly immaterial to its liability what arrangement may have existed between the Mallory Steamship Company and the Southern Steamship Company."
Assignment 59: "The court charges the jury that, while it is necessary for the plaintiff to establish that the Mallory Steamship Company promised Nicholas Druhan to furnish good and sufficient apparatus for the hoisting of cargo aboard the steamship Shawmut, it is not necessary that the agreement should have been expressed in words, but it would be sufficient if the Mallory Steamship Company employed Druhan to load said steamship, and the jury believe under all the circumstances that they understood in so contracting that the Mallory Steamship Company was to furnish good and sufficient apparatus as aforesaid.
Smith Young & Leigh, of Mobile, for appellant.
Harry T. Smith & Caffey, of Mobile, for appellee.
This case was formerly before this court, being reported in 16 Ala.App. 438, 78 So. 636. It is an action in the name of Nicholas Druhan, as plaintiff, for the benefit of his insurer, the Georgia Casualty Company, to recover a sum paid by the casualty company under the terms of an insurance policy protecting the plaintiff against loss for personal injuries sustained by a servant of the plaintiff.
In December, 1914, the Mobile agent of the defendant steamship company, Mr. Du Bois, received a letter from the defendant, advising him that the steamship Shawmut was available at Mobile on the 28th for a full cargo of ties, and instructing him to be on the lookout for the vessel and to give her a full load and prompt dispatch. The Shawmut was a Southern Steamship Company steamship. Shortly after receipt of this letter, acting under the authority of the same, Mr. Du Bois entered in to a contract with the plaintiff to load the vessel. The contract was oral, and according to Mr. Du Bois, who testified on behalf of the defendant, was expressed as follows:
Upon the arrival of the Shawmut at Mobile, it was, for the purpose of loading, under the control and supervision of Mr. Du Bois, who continued to act under the authority of the letter referred to. As stated by him:
At no time did he act as agent or under the direction of the Southern Steamship Company. The vessel was loaded by the plaintiff under the arrangement with Mr. Du Bois; the bill for services rendered was presented to him and paid by check of the defendant steamship company. The defendant introduced in evidence that the defendant was handling the ship for the Southern Steamship Company, and was reimbursed for the money paid the plaintiff for stevedoring the ship by the Southern Steamship Company; but the jury was authorized to find, as they did, that the plaintiff was loading the ship for the defendant. While the ship was thus being loaded in the port of Mobile, one of the blocks that supported a derrick on the ship, used in the loading of the ship, gave way, causing the derrick to fall, strike plaintiff's servant, Higgins, while he was engaged in assisting in loading the vessel, and to break his foot and otherwise injure him. The block was split, and according to the evidence of one of the witnesses was rotten. The block and derrick were furnished by the defendant, according to the testimony of one witness, and were certainly furnished by the steamship, which, as already stated, was under the control of the defendant for the purpose of loading. The appliance had not been inspected by the plaintiff. Higgins, through his attorney, made claim against the plaintiff, and the same was settled by the casualty company. Under the terms of the contract of insurance, the casualty company was subrogated to the rights of the plaintiff, Druhan, and in this suit seeks to recover in the name of the plaintiff the amount paid out. The case was tried on the general issue before a jury, judgment being for the plaintiff, and defendant prosecutes this appeal.
In view of the above statement of facts, the trial court did not err in allowing the following question, over the objection of the defendant, to be asked the witness Druhan:
"Do you know whether or not Mr. Du Bois had for a considerable time been in the habit of contracting for stevedores for loading vessels on behalf of the Mallory Steamship Company prior to that time?"
The subsequent testimony of Du Bois himself was amply sufficient to establish his agency for the defendant.
The same is true of the question to Druhan:
"Did you know whether these stevedores did load those vessels for the Mallory Line under those contracts?"
A proper predicate was laid for the admission of the testimony of the witness Young, given on the former trial of the case. It was for the court to decide whether the witness was out of the state, and, this fact having been shown to the satisfaction of the court on evidence authorizing such a conclusion, the ruling of the trial court will not be reversed. Jacobi v. State, 133 Ala. 8, 32 So. 158.
The witness Norvell was properly allowed to testify that Norvell Bros. were agents of the insurance company at the time they countersigned and delivered the insurance policy, although it appeared that their power of attorney was in writing. While agency may not be proved by the mere declaration of the agent, the agent is competent to testify to the fact of agency. Parker v. Bond, 121 Ala. 529, 25 So. 898. This issue was a collateral matter. Hence the rule of secondary evidence did not apply. Bunzel v. Maas, 116 Ala. 80, 22 So. 568. Moreover, the insurance company was shown to have recognized the policy as binding. For these reasons, the trial court did not err in allowing the introduction in evidence of the policy of insurance.
The defendant was not allowed at several points to show by witness Du Bois that the defendant had no interest in the cargo of the Shawmut, in the freight money, or in the boat. These facts were elsewhere in evidence without contradiction.
It was incumbent upon the plaintiff to show that he was liable to his servant Higgins, for the personal injuries sustained that he, or the insurance company for him, settled with Higgins to avoid a judgment, and that the amount paid was not greater than a fair compensation. The fact that the plaintiff paid the damages without requiring...
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...claimed was the primary and efficient cause of the injury; . . ." Alabama recognizes the exception to the rule. In Mallory S.S. Co. v. Druhan, 17 Ala.App. 365, 84 So. 874, the court made the following "The exceptions to the rule that indemnity will not be allowed among joint wrongdoers are ......
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