Parker v. Wilson

• Decision Date: 26 November 1912
• Citation: 60 So. 150,179 Ala. 361
• Parties: PARKER v. WILSON.
• Court: Alabama Supreme Court

60 So. 150

179 Ala. 361

PARKER v. WILSON.

Supreme Court of Alabama

November 26, 1912

Appeal from Circuit Court, Jefferson County; E. C. Crowe, Judge.

Action by William M. Parker, as administrator of decedent's estate, against Cunningham Wilson. Judgment for defendant and plaintiff appeals. Affirmed.

Sterling A. Wood and Clement R. Wood, both of Birmingham, for appellant.

Tillman Bradley & Morrow and L. C. Leadbeater, all of Birmingham, for appellee.

SAYRE J.

Appellant sued for damages for the death of his intestate alleged to have been caused by the negligent operation of defendant's automobile. Assignments of error are numerous, but the consideration of a few points will suffice to determine the appeal. Appellant seems to concede the fact and it is beyond dispute, that defendant was not present at the accident which resulted in the death of intestate, but the machine was being driven along the street by his son, a young man then some 18 or 19 years of age. The trial court gave the general affirmative charge for the defendant on the theory that the young man was not acting as the agent of defendant at the time, and the stress of the argument for reversal is laid upon propositions affecting the propriety of the court's action in that regard.

Defendant's plea was in this form: That he is not guilty of the negligent and wrongful matters alleged against him. Plaintiff moved to strike this plea. The objection to the plea is that it was not a general denial, but that it confessed, without avoiding, material averments of the complaint, to wit, that defendant's son in driving the car was acting as the agent or servant of the defendant and in the line and scope of his authority as such. The Code, § 5331, provides that in all actions for injuries to the person the general issue is "not guilty," and puts in issue all the material allegations of the complaint. We do not understand why, with this statutory provision before him, defendant should have adopted the form of plea here shown with its unnecessary departure from the statutory form; nor, on the other hand, are we able to attach much weight to the criticism of the plea of record as meaning something substantially different from the statutory plea. Evidently the plea was treated in the court below as importing a denial of the agency of the driver of the machine as well as a denial of any wrong or neglect on the part of the driver in the causation of the death of plaintiff's intestate. A due regard for that principle of appellate procedure which would deny reversal on technical grounds having no relation to the merits of the case requires that the ruling of the trial court in this regard be not disturbed. A combination of all the material averments of the complaint was necessary to constitute the wrong complained of, and this, though some of them, as, for example, that defendant had appointed his son his agent to drive his automobile, standing alone, may have been neither negligent nor wrongful, and so did not fall within the literal denial of the plea. The plea, in our judgment, was properly accepted as a denial of everything necessary to constitute guilt, and the motion to strike was rightly overruled.

The bill of exceptions, after setting out all the evidence, recites that the defendant requested the general charge in writing, and the court gave the same, and indorsed thereon: "Given, E. C. Crowe, Judge." In the same connection the court said, inter alia: "According to my idea of the law pertaining to the facts as given in this particular case by the plaintiff's witnesses, granting everything they say to be true, under the law he would not be entitled to recover, the main point being that this injury and death must result as an act on the part of the agent or servant of Dr. Wilson, and there is no evidence to show that Frank Wilson was the agent or servant of Dr. Wilson at the time of the action (accident?); and it becomes my duty to give the general charge in favor of the defendant, which I do." The point taken against the trial court's action as shown by the record is that the language of the charge is not set out, and we must presume that the argument for a reversal would have us infer that the charge given, if set out in verbis, would disclose error on the part of the trial court even though there was an absence of any evidence going to show that the driver of the automobile was at the time acting as the agent or servant of the defendant, this, because the statute, section 5362 of the Code, forbids the court to charge upon the effect of the testimony, unless required to do so by one of the parties, and because charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written. Code, § 5364. But this would be to reverse upon an exceedingly narrow and highly technical interpretation of the record and the statutes. The term "general charge" is of common use in all the courts of this state in which trials are had by jury, and we cannot affect to doubt the meaning of the record in this case. The burden of showing error rests upon the appellant, and if possibly there was error in the terminology of the charge, as distinguished from the purpose sought to be accomplished by its request and the purpose which evidently the jury did not misapprehend, it was for the appellant so to state the subject-matter of the exception as to leave no reasonable room for the operation of the rule, of willing and constant observance here, which indulges all intendments in favor of the trial court. The assignment can avail the appellant nothing.

No question being made but that the issue of negligence vel non in the operation of the machine would have required the determination of customary triers of fact, if in other respects the case was proper for submission to the jury, we come now to the only question of merit presented by the record: Whether, on the scanty facts shown, the jury might have found that defendant's son was acting as his agent or servant in driving the car in such kind as to bring into operation the rule of respondeat superior? It was made to appear in the proof that defendant was a physician in active practice and kept two automobiles for use in visiting his patients. He had a servant regularly employed for driving his machines. On the occasion in question the son was using the machine for his own purpose and without the knowledge of defendant. He had with him two gentlemen, and the inference is that they were not members of defendant's family. In view of the general proposition that the law will not presume a violation of social or contract duty, it may have been open to the jury to infer from the facts heretofore stated that defendant's son had a general permit to use the machine when not otherwise in demand. Probably also, if the contrary was true, and a knowledge of the fact essential to the proper presentation of the defense, the fact was within the peculiar knowledge of the defendant, and he should have produced countervailing evidence.

General principles of law governing the case are more or less familiar. The mere fact of paternity does not make the father liable for the torts of his minor child. The father is entitled to the services of his minor child, but that is a branch of the law of the family in which each individual works for the well-being of all others without expectation of specific compensation; as a practical proposition it amounts to this only: That the father is entitled to receive any wages the child may earn; there being no legal sanction for the assertion of greater right by the father against the child. Command is assigned to pater familias because upon him devolves responsibility for maintenance and in large measure...