Sibley v. Odum

• Decision Date: 15 November 1951
• Docket Number: 6 Div. 158
• Parties: SIBLEY v. ODUM et al.
• Court: Alabama Supreme Court

Page 896

58 So.2d 896

257 Ala. 292

SIBLEY v. ODUM et al.

6 Div. 158.

Supreme Court of Alabama.

Nov. 15, 1951.

Rehearing Denied Jan. 3, 1952.

Further Rehearing Denied May 15, 1952.

Mayfield & Massa, Tuscaloosa, for appellant.

Davies & Williams, Birmingham, for appellee Odum.

SIMPSON, Justice.

This appeal presents the question of whether there was error in granting appellee's motion to set aside the verdict of the jury and order a new trial. The verdict was: 'We the jury find the issues in favor of the plaintiff against the defendant James E. Odum and assess her damages at $10,000.' The case is argued here on the theory that the verdict was a discharge of Sibley and against Odum for damages for personal injuries sustained in an automobile accident and we will review the case on that theory.

The motion for new trial contained eighty-eight grounds. In granting the motion, as appears from the judgment entry, the trial court assigned no ground, but we have held that the trial court's action in granting a new trial must be sustained on appeal if any good ground therefor is presented by the motion. A Templeton & Son v. David, 233 Ala. 616, 173 So. 231; Cox v. Martin, 250 Ala. 401, 34 So.2d 463.

One ground of the motion was that the verdict was repugnant and inconsistent. Appellant's brief is devoted to that ground. Appellees in brief assert that 'the trial court held, and we submit correctly so, that such a verdict was contrary to the pleadings and the evidence in the case and could not be sustained.' We have addressed ourselves, first, to that ground of the motion, and having concluded--as we shall hereafter show--that ground to be a good one, we need not specifically notice any other grounds.

The only count of the complaint submitted to the jury was Count 3. It alleged that plaintiff, John Sibley and Odum were riding in Odum's car; that Sibley was driving as the agent of Odum and 'under the immediate control and direction of the defendant, James E. Odum, and at said time and place, the said defendant, John Sibley acting within the line and scope of his said agency, with reckless disregard of the consequences, and being conscious at the time that his conduct in so doing would probably result in disaster, willfully or wantonly injured the plaintiff by driving said automobile at such a high rate of speed and in such a manner, that the same was caused to run off of said highway embankment, turn over and burn, and the plaintiff avers that as a proximate consequence of the willful and wanton conduct of the defendant as aforesaid, the plaintiff was grievously injured * * * and the plaintiff alleges that said willful and wanton misconduct was the proximate cause of all the injuries and damages aforesaid.'

Does this charge Odum with direct participation in the willful or wanton conduct of Sibley because it alleges that Sibley was then and there driving said automobile as the agent and under the immediate control and direction of the defendant Odum? We think not. It is only the acts and conduct of Sibley that are characterized as willful or wanton; and following averment of Sibley's said acts and conduct it is averred that 'as a proximate consequence of the willful and wanton conduct of the defendant as aforesaid, the plaintiff was injured.' (Italics ours.) If the averment that Sibley was driving the car as the agent of Odum and under Odum's immediate control and direction be construed as charging that Odum gave direction for or ratified the act of Sibley in driving at a high rate of speed, it is not charged that this or any other act or conduct of Odum was wanton, willful or done with reckless disregard of the consequences. Odum's mere presence in the car did not change the relationship of principal and agent or master and servant. Thomas v. Carter, 218 Ala. 55, 117 So. 634. To be a direct participant and liable for the consequences of what the agent did on that theory, the principal is subject to the same rule which controls the liability of the agent; that is, that Odum's liability in trespass as a participant in the wanton act must be by reason of Odum's wanton act, not alone by reason of Sibley's wanton act. In the absence of allegations showing Odum's participation in the wanton act charged to Sibley, his liability is shown to be derivative, that is, upon the principle of respondeat superior. The result with respect to Count 3, therefore, is to charge...