Schaeffer v. Walker

• Decision Date: 16 June 1941
• Docket Number: 8 Div. 102.
• Citation: 241 Ala. 530,3 So.2d 405
• Parties: SCHAEFFER v. WALKER
• Court: Alabama Supreme Court

3 So.2d 405

241 Ala. 530

SCHAEFFER v. WALKER

8 Div. 102.

Supreme Court of Alabama

June 16, 1941

Rehearing Denied June 30, 1941.

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

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

Mack Killcrease, of Albertville, and E.B. Black, of Boaz, for appellee.

THOMAS Justice.

The appeal was from an order setting aside a judgment and granting a new trial.

It is the duty of the court to set aside a verdict and grant a new trial, though the evidence is in conflict, if the trial court has a definite and well-considered opinion from the evidence that the verdict failed to do justice under the proper pleadings directing and guiding the trial.

In Parker et al. v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504, it is said: " * * * The evidence was in conflict, but the trial court saw and heard the witnesses and on appeal some presumption must be indulged in favor of its action. As was said in Batson v. State, 216 Ala 275, 113 So. 300, courts of record have inherent power, independent of the statute, to set aside and vacate their orders and judgments within the term and for common-law causes. Hence we attach no controlling importance to the fact that appellees in their motion described the verdict as contrary to the great weight of the evidence and as contrary to the preponderance of the evidence rather than as, in the language of the statute, section 9518 of the Code [Code 1940, Tit. 7, § 276], not sustained by the great preponderance of the evidence. * * * "

See, also, Alabama By-Products Corp. et al. v. Rutherford, 239 Ala. 413, 195 So. 210, for other authorities.

Under grounds of the motion the court had the inherent power to set aside the verdict of the jury independent of the statute within the terms and for the common law causes.

In Batson v. State ex rel. Davis, Solicitor, 216 Ala. 275, 113 So. 300, 302, it was observed: "The intent to strike down the power of the common-law courts, in the exercise of its inherent power to grant a new trial where seasonably made and on recognized grounds at common law, is not clearly evidenced in the statute. Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829; Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842, 8 Am.St.Rep. 748; 29 Cyc. 722, 727, 759. That is to say, courts of record have inherent power independent of the statute to set aside and vacate their orders or judgments within the term and for common-law causes. 15 R.C.L. 688."

See, also, 46 Corpus Juris p. 59, § 2; Tyler v. Aspinwall, 73 Conn. 493, 47 A. 755, 54 L.R.A. 758.

The rule of the common law is thus stated in 34 Corpus Juris, § 436, p. 207: "A court has full control over its orders or judgments during the term at which they are made, and may, upon sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, supplement, open, or vacate such judgments. This was the rule at common law, and it prevails in almost all jurisdictions. * * *."

See the following authorities: Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Lockwood v. Thompson, 198 Ala. 295, 73 So. 504; Ex parte Doak, 188 Ala. 406, 66 So. 64; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939; Talladega Mercantile Co. v. McDonald, 97 Ala. 508, 12 So. 34; Rich v. Thornton, 69 Ala. 473; Desribes v. Wilmer, 69 Ala. 25, 44 Am.Rep. 501; Johnson v. Lattimore, 7 Ala. 200; Acre v. Ross, 3 Stew. 288; Neale v. Caldwell, 3 Stew. 134.

The court acted upon its own motion under its inherent power to vacate the decree in accord with the public policy of the state. Ex parte Johnson, 238 Ala. 584, 192 So. 508.

The trial court saw and heard the witnesses on the trial and, within the time prescribed by statute, granted a new trial. We will not disturb the same. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; Code 1940, Tit. 7, § 276, p. 281.

It is insisted by appellant that the suit was against W.F. Schaeffer, as an individual, and not as trustee, etc. Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Gladden v. Columbiana Savings Bank, 235 Ala. 541, 180 So. 548.

This phase of the pleading was amendable to meet the facts as a suit against Schaeffer, as trustee. Briel v. Exchange Nat. Bank, 172 Ala. 475, 55 So. 808. We may note the same defect is contained in the pleading by the suit of Walker, administrator, etc. The word "as" should have been embraced in the pleading. The case was so tried and issue determined as that of Walker, administrator of the estate of A.W. Walker, deceased, as plaintiff, against W.F. Schaeffer, trustee of North Alabama Motor Express Co. Inc., a corporation. This was not called to the attention of the court. The record, evidence and charge of the court indicated that the trial was had against Schaeffer, as trustee of the North Alabama Motor Express, Inc., a corporation. Under this view of the case the defendant was not entitled to the affirmative charge requested. That is to say, the variance was not called to the attention of the trial court under Circuit Court Rule 34 of the Code of 1923, Code 1940, Tit. 7, p. 1035, Rule 34.

It follows from the foregoing that the judgment of the trial court should be and the same is affirmed.

Affirmed.

GARDNER, C.J., BROWN, and FOSTER, JJ., concur.

On Rehearing.

THOMAS Justice.

The court understood from the trial that the suit was sought to be maintained and defended in a representative capacity and not as by and against an individual. The trial court charged as follows:

"This is a suit by J.C. Walker as administrator of the estate of A.W. Walker against W.F. Schaeffer, Trustee for the North Alabama Motor Express Company, a corporation. The plaintiff claims of the defendant the sum of five thousand dollars damages for it says that on or about the 28th, of January 1939 while the deceased man, plaintiff's intestate, was traveling in a wagon upon the public highway or streets in the city of Boaz, and while driving or riding along the street in the town that this defendant through its agents, employees drove a truck close to a mule that was drawing the wagon in which the deceased, Mr. Walker, was riding, that the mule became frightened and turned the wagon and threw him to the ground and he received injuries from which he died within a very short time, some two days possibly. And the plaintiff gentlemen of the jury says that the death was caused by the negligence of this Company, or by the negligence of its agents, employees in the operation of the truck on the streets of Boaz, and the plaintiff says they are entitled to a judgment at your hands as a result of the wrong that caused this man Walker's death.

"The defendant gentlemen of the jury, they deny that, they say that is not true, that they are not guilty of the charge and that no negligence on the part of this Company, its agents or employees had anything to do with the death of this man, that it was purely an accident and that it did not result from the fright of the mule on account of the manner in which they were operating their truck or cars at that time and place complained of." (Italics supplied.)

The court no doubt had in mind the administrative presumption that arose from the evidence in showing the use of the corporation's truck in making a delivery at the time and place in question. Bell v. Martin, Ala.Sup., 1 So.2d 906. The pleading was so considered, when the third and fifth grounds of demurrer to complaint were drawn, though the contrary view is contained in the plea employing the pronoun "he." The judgment entry omitted the caption under Rule 26. 175 Ala. xix, 61 So. vii; Code 1940, Tit. 7, p. 1013, Rule 26. Though the complaint omitted the word "as" in declaring the names of parties plaintiff and defendant, plaintiff's letters of administration were admitted in evidence without objection of the defendant.

The testimony of J.C. Walker was to the effect that he was the son of decedent and was the administrator of his estate.

Defendant's witness Griffin testified that at the time and place he was driving the truck in question for the regular driver Mr. Thomas and he had a license to drive at that time. He detailed the manner of his driving to and at the time of the accident and on cross examination said: "I work for North Alabama Motor Express. I was just a helper, but I was driving that truck that day. I drive a lot of days; I had driven in there before. * * *." On further examination he detailed the manner of his turn, shifting of gears, etc.

Defendant's witness Hendrix testified that the accident in question happened near his place; that it "was a North Alabama Truck" at the time and place of the accident. On cross examination, he went into the facts of the case, locations of buildings, roads, etc., at the time and detailed the name of some person present or near.

The witness Morgan testified for the defendant that the North Alabama Motor Truck or Motor Company delivered goods there. That "there was a driveway that come up to our back platform to the back of the store, and that is where they delivered." That he remembered the time and place in question and saw the truck make the turn back there between seven and eight o'clock in the morning; that he was expecting merchandise to be unloaded and watched it (the truck) make the turn; he saw the truck go behind the blacksmith shop, saw the one horse wagon come in view from the other way and that it made a turn at the point where it was customary to hitch; saw the man fall out of the wagon sitting with his hands in his pocket on the end of the spring seat; "that the truck was the Alabama Motor Express Company-North Alabama Motor Express Company." This witness was cross-examined at length as to the time,...