Proctor v. Coffey

• Decision Date: 05 October 1933
• Docket Number: 8 Div. 451.
• Citation: 149 So. 838,227 Ala. 318
• Parties: PROCTOR v. COFFEY.
• Court: Alabama Supreme Court

149 So. 838

227 Ala. 318

PROCTOR v. COFFEY.

8 Div. 451.

Supreme Court of Alabama

October 5, 1933

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Action under homicide statute by Rena Coffey, as administratrix of the estate of R. A. Coffey, deceased, against J. A. Proctor. From a judgment granting plaintiff's motion for a new trial, defendant appeals.

Affirmed.

Eyster & Eyster, of Decatur, for appellant.

Proctor & Snodgrass, of Scottsboro, for appellee.

FOSTER Justice.

This is an appeal from a judgment setting aside a verdict and judgment in favor of defendant, in a suit under the homicide statute (Code 1923, § 5696). Plaintiff's intestate was riding on the back seat of the car at the invitation of defendant. That situation required of defendant an exercise of ordinary care not to injure him. The counts separately charged negligent injury and willful and wanton injury causing death.

There were pleas of contributory negligence for the failure to protest after knowledge of the negligent and dangerous operation of the car. They were held good as to the simple negligence count and bad as to the willful or wanton count.

The evidence tended to show negligence of defendant, or even wantonness as an inference from the facts, and also the contributory negligence of plaintiff's intestate.

The court assigned no ground as that on which it acted in granting the motion. One ground was that the verdict was contrary to the great weight of the evidence. The ruling might have been based on that ground. We do not wish to say that, as an original proposition such would be our ruling as to the evidence, but we cannot reverse the judgment on such a ruling unless we think that it was clearly wrong. We cannot here so affirm. A discussion of the evidence would not be appropriate. The judgment of the court in that respect cannot therefore be reversed. But since thereby another trial is called for, we think that for that purpose we should pass upon those other grounds of the motion which show questions likely to arise on another trial.

The insistence of appellee that the pleas must show a joint adventure between plaintiff's intestate and defendant in order that they shall constitute a good defense mistakes the principle that it is only when it is sought to impute to the passenger the negligence of the driver in respect to a duty to some third person and not to the passenger himself that the relation of joint adventurers is material. That was the situation in Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870; Id., 223 Ala. 111, 134 So. 868; Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So 49; Birmingham R., L. & P. Co. v. Barranco, 203 Ala. 641, 84 So. 839; Birmingham-Tuscaloosa R. & U. Co. v. Carpenter, 194 Ala. 141, 69 So. 626.

But it has also been explained that such relation is immaterial when one adventurer sues the other for his negligent injury. Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Baker v. Baker, 220 Ala. 201, 124 So. 740.

The gravamen of the pleas is the negligent failure of the passenger guest to observe due care for his own safety as against a known and appreciated or anticipated danger, and it is not dependent upon the existence of control by him in any respect of the operation of the car. It is the duty to the defendant, and not to a third person which the pleas set up, as described in our cases of McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; McDermott v. Sibert, 218 Ala. 670, 119 So. 681.

We do not think that the grounds of demurrer to the special pleas point out a material defect in them.

Given charge 13 assumes that the failure to protest was due to a disregard of duty, rather than to some other cause. It shows facts from which an opportunity and duty to protest would ordinarily be inferred, but not necessarily so. There must be a negligent or willful failure to protest, having an opportunity to do so. The jury is also left without being thereby instructed as to the meaning of negligence to determine if the car was negligently operated by defendant. For such reasons, however, we would not affirm that it was reversible error to give this charge.

But it is insisted that no duty is imposed upon the guest because of an opportunity to know of the dangerous speed, without the averment of a knowledge of it, and in the absence of circumstances alleged which suggest to one of ordinary care a necessity to keep watch. The question presented is important. Two material circumstances, one of which is ordinarily averred, are both omitted, viz.: (1) That the guest has abandoned his own faculties and trusts...