Shipp v. Davis

• Decision Date: 22 March 1932
• Docket Number: 6 Div. 182.
• Citation: 141 So. 366,25 Ala.App. 104
• Parties: SHIPP ET AL. v. DAVIS.
• Court: Alabama Court of Appeals

141 So. 366

25 Ala.App. 104

SHIPP ET AL. v. DAVIS.

6 Div. 182.

Court of Appeals of Alabama

March 22, 1932

Rehearing Denied April 19, 1932.

Appeal from Circuit Court, Tuscaloosa County; J. R. Bealle, Special Judge.

Action for personal injuries by Gordon Davis against Jack Shipp and M. G. Shipp. From a judgment for plaintiff, defendant M. G Shipp appeals.

Reversed and remanded.

Harwood & McQueen, of Tuscaloosa, for appellant.

Foster Rice & Foster, of Tuscaloosa, for appellee.

SAMFORD J.

The action in this case was brought jointly against Jack Shipp and Dr. M. G. Shipp claiming damages as a result of the negligent operation of a certain automobile by the defendant Jack Shipp. There was judgment against both defendants, and the defendant Dr. M. G. Shipp alone takes this appeal.

For the purposes of this appeal the following may be said to be the facts: Jack Shipp is a man over the age of twenty-one years and at the time of the accident here complained of was a student at the University of Alabama located at Tuscaloosa. Dr. M. G. Shipp was his father and lives at Anniston, Ala and about October 1, 1928, purchased for Jack and delivered possession to him a Buick car, knowing at the time that Jack would take it with him to the University and use it while there. There was also some evidence tending to show that at the time of the gift Dr. Shipp knew that his son Jack "drank." Incident to the gift, the father, Dr. Shipp, paid the license required by the state, and in obtaining the license assessed the car for taxes in his own name. On or about October 19, 1928, while Jack (defendant M. G. not being present) was operating the car at a point on the public road near Tuscaloosa, he so negligently operated the car as to run into the rear of a bus, in which was this plaintiff and others, and as a proximate result thereof this plaintiff was injured. There was evidence also tending to show that at the time of the accident Jack was drinking.

Over the objection of defendant Dr. Shipp, the witness Sapp was allowed to testify that Dr. Shipp (the father) said to him (Sapp) at Tuscaloosa shortly after the accident: "He knew that Jack drank and would not have been surprised at the accident if Jack had been driving."

The plaintiff introduced as a witness Mrs. Effie Kilpatrick, who testified that she did not hear the noise of the collision; that she came up after the accident had happened; that when she got there Jack Shipp was sitting under the steering wheel of the Buick car, and on the seat beside him were two girls. Witness asked who was driving the car, and one of the girls replied, Jack Shipp. Jack was sitting between witness and the girl who spoke and made no denial. Objection was made and exception reserved to this testimony.

For the purposes of a disposition of this appeal, the foregoing may be said to be the facts, except as it may be necessary to further add to them in the discussion of the points involved.

There are seventy-five assignments of error, but they all revolve around five major questions which will be discussed and pointed out in what follows.

We may dismiss consideration of the demurrer to count 1 of the complaint by citation of the case of Rush v. McDonnel, 214 Ala. 47, 106 So. 175. Under the rulings in that case count 1 states a good cause of action.

Count 3 undertakes to state a case of concurring negligence as against the defendant Dr. M. G. Shipp, and to this end contains the following allegation: "That said automobile driven by said defendant Jack Shipp against the automobile in which plaintiff was riding was the property of the defendant, Jack Shipp, and that the said defendant Dr. M. G. Shipp had given said automobile to said defendant Jack Shipp to drive and operate the same and negligently permitted the said defendant Jack Shipp to own and have the custody and possession of and to drive said automobile with the knowledge that the said Jack Shipp was incompetent to safely drive and operate the same."

Except in specific cases, such as the sale and delivery of machinery with latent defects, a person who is not the owner and is not in control of certain property is not liable for negligence in respect of such property. 45 Corpus Juris, 881 (317) C.

In the absence of an allegation of relationship constituting a legal control of Jack Shipp by Dr. M. G. Shipp, so as to bring into action the doctrine of respondeat superior or the maxim qui facit per alium facit per se at the time of the accident Jack Shipp would be liable for his own personal negligence which is the proximate cause of an injury, but the...