Smith v. Richardson

• Citation: 277 Ala. 389,171 So.2d 96
• Decision Date: 21 January 1965
• Docket Number: 1 Div. 202
• Parties: Theresa SMITH, pro ami, v. Arnett RICHARDSON. Arnett RICHARDSON v. Coy SMITH. , 202-A.
• Court: Supreme Court of Alabama

Page 96

171 So.2d 96

277 Ala. 389

Theresa SMITH, pro ami, v. Arnett RICHARDSON.

Arnett RICHARDSON v. Coy SMITH.

1 Div. 202, 202-A.

Supreme Court of Alabama.

Jan. 21, 1965.

Collins, Galloway & Murphy, Mobile, for appellant-appellee Richardson.

Brutkiewicz & Crain, Mobile, for appellant Theresa Smith and appellee Coy Smith.

HARWOOD, Justice.

Theresa Smith, a girl of about six years of age, was struck by an automobile driven by Arnett Richardson, as she was crossing a street in Citronelle.

Thereafter two suits were filed against Richardson, one by Theresa Smith, suing by her father as next friend, and another by Coy Smith, the father. This second suit was under the provisions of Section 118, Title 7, Code of Alabama 1940, which permits a suit by the father (and in certain enumerated circumstances the mother) for injuries to a minor child, a member of the family.

Theresa's complaint contained two counts, one in negligence, and the other alleging wilful and wanton conduct on the part of Richardson. Mr. Smith's complaint contained only one negligence count.

To Theresa's complaint the defendant plead the general issue, and to Mr. Smith's complaint, he pleaded the general issue, and also contributory negligence in permitting the child to be in a dangerous place.

The two cases were by agreement consolidated for trial.

After hearing the evidence and receiving full instructions from the court, the jury returned a verdict for the defendant in Theresa's case, and a verdict for the plaintiff in Mr. Smith's case, assessing his damages at $5,165.

Thus we have the anomalous situation of the same jury, on identical evidence, finding no negligence in Theresa's case, but that the defendant was negligent in Mr. Smith's case.

Judgments were entered in each case pursuant to the respective verdicts.

Each losing party in the proceedings below duly filed their respective motions for new trials, which were denied.

In each motion are grounds to the effect that the verdicts rendered are inconsistent in that the evidence was identical, and the defendant was the same in each case, as was the jury.

On motion of both parties the record was consolidated for appeal, and it is in this form that the record has reached us.

The appellants in their respective assignments of error assert error on the part of the lower court in denying their respective motions for a new trial. In briefs counsel for the respective appellants assert and argue as error the action of the lower court in denying the respective motions for a new trial because of the inconsistency of the verdicts.

It is interesting to note that counsel for Richardson in his appeal, in which the father was the successful plaintiff, argue that the verdict in Theresa's case in favor of the defendant Richardson, including necessarily a finding that Richardson was not negligent, necessitates the conclusion of no negligence on Richardson's part in the father's case, where as on the other hand counsel for appellant, Theresa, argue that the verdict in her father's case, necessarily based on a finding of negligence on Richardson's part, compels a conclusion of the existence of negligence in Theresa's case. The verdicts, clearly inconsistent, having been rendered at the same time by the same jury, on identical facts, renders speculative what the jury intended by its verdicts. Patently, the verdicts indicate confusion on the part of the jury.

Coy Smith's claim for damages was dependent upon negligence on the part of Richardson toward Theresa (Central of Georgia Ry. Co. v. Robins, 209 Ala. 12, 95 So. 370), as was of course Theresa's claim for damages. The jury by their verdict in Theresa's case negatived any negligent conduct by Richardson toward her, yet at the same time and on the same facts found that Richardson was negligent toward Theresa in Mr. Smith's case.

While the two judgments now on review were based on separate complaints filed by separate parties, and were rendered on separate verdicts, yet in truth and in fact the separate cases were joined for trial, and the verdicts rendered on the identical facts. This fact cannot be disregarded on review. We think therefore that the legal principles governing joint defendants or plaintiffs more apt in the interest of justice, than if a purely mechanical approach in the aspect of separate trials be applied.

In Carter v. Franklin, 234 Ala. 116, 173 So. 861, Justice Bouldin wrote:

'* * * where employer and employee are sued in tort, the liability charged to the employer resting solely on the negligence or wanton conduct of the employee, a verdict against the emeployer and in favor of the employee is due to be set aside on proper motion. It is self contradictory. It says in one aspect that the employee was guilty of negligence proximately causing injury, and because of such negligence in the line and scope of his employment, his employer is liable, while in the other aspect, it says the employee was not guilty of negligence, the proximate cause of injury. Such a verdict on its face discloses that the jury has misconceived the issues, or was prompted by bias against the employer or in favor of the employee. If a proper jury case was presented in the evidence, such verdict should, on proper motions, be set aside in toto, that the cause be retried on the merits, unhampered by questions of res adjudicata. * * *'

In R. L. Turner Motors v. Hilkey, 260 Ala. 577, 72 So.2d 75, Hilkey had filed three separate suits against R. L. Turner Motors, a partnership composed of R. L. Turner, Anna L. Turner, and C. M. Jacobs individually.

The cases were consolidated for trial and tried on the same evidence. In each case a verdict was rendered against the partnership, and in favor of each individual defendant. In each case a motion for a new trial was overruled. The cases were consolidated for appeal purposes. In reversing the judgments as to R. L. Turner Motors, and R. L. Turner, individually, this court wrote:

'* * * The only way in which the partnership could be held liable in the instant case is for R. L. Turner to be liable individually. He was acquitted by the jury and therefore it follows that the partnership was necessarily exonerated, because it is only through the wrongdoing of R. L. Turner that the partnership can be liable. It is admitted that Mrs. Anna L. Turner personally was in no way a party to the wrongdoing. We accordingly consider that there is a fatal inconsistency in the judgment exonerating R. L. Turner individually and holding the partnership liable. The motion for a new trial should have been granted. Carter v. Franklin, 234 Ala. 116, 173 So. 861.

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'* * * We think the judgment to the extent that it is in favor of R. L. Turner should also be vacated to do complete justice. See Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So.2d 259; St. Paul Fire & Marine Ins. Co. v. Johnson, 256 Ala. 690, 57 So.2d 80.'

To the same effect see Walker v. St. Louis-San Francisco Ry. Co., 214 Ala. 492, 108 So. 388; Sibley v. Odum, 257 Ala. 292, 58 So.2d 896.

In the New York case of Reilly et al. v. Shapmar Realty Corp., 267 App.Div. 198, 45 N.Y.S.2d 356, two causes of action had been brought against the Shapmar Realty Corporation, one by the infant plaintiff seeking damages for personal injuries, and one by the mother...