Smith v. Tripp

• Decision Date: 11 January 1945
• Docket Number: 6 Div. 256.
• Citation: 20 So.2d 870,246 Ala. 421
• Parties: SMITH et al. v. TRIPP.
• Court: Alabama Supreme Court

20 So.2d 870

246 Ala. 421

SMITH et al. v. TRIPP.

6 Div. 256.

Supreme Court of Alabama

January 11, 1945

Rehearing Denied March 1, 1945.

Appeal from Circuit Court, Blount County; W. M. Rayburn Judge.

P A. Nash, of Oneonta, Bradley, Baldwin, All & White, of Birmingham, and Hood, Inzer, Martin & Suttle, of Gadsden for appellants.

Higgins, Lamb & McCown and Lawson H. Myers, all of Fayetteville, Tenn., J. T. Johnson, of Oneonta, and Finis E. St. John, of Cullman, for appellee.

BROWN Justice.

This is an action on the case by the administratrix of Roscoe Tripp, deceased, under the Homicide Act, Code 1940, Tit. 7, § 123, against William Edward Smith and the Standard Oil Company of Kentucky, a corporation, for wrongfully causing the death of plaintiff's intestate on the 3rd of August, 1943.

The verdict for the plaintiff was returned by the jury under count one of the complaint, which averred as inducement that, 'plaintiff's intestate occupied an automobile truck then and there being operated on a public highway of the State of Alabama, namely, the Bee Line Highway, otherwise known as and called United States Highway No. 31, Alabama Highway No. 3, at a point approximately one-half mile north of the village of Bangor, Alabama, in Blount County, Alabama, where plaintiff's intestate had a right to be,' and that said William Edward Smith who was at the time and place, 'an officer, servant, agent or employee of the defendant Standard Oil Company of Kentucky, a corporation, while acting within the line and scope of his authority as such caused, allowed or permitted an automobile truck then and there under his control to come in contact with the automobile truck occupied by plaintiff's intestate thereby causing the death of plaintiff's intestate.' This was followed by the general averment that the death of plaintiff's intestate was caused by the negligence of said Smith, 'while acting in line with and within the scope of his employment in that he negligently caused, negligently allowed or negligently permitted an automobile truck then and there under his control to come in contact with the automobile truck occupied by plaintiff's intestate at the time and place afforementioned.'

The demurrer, which was overruled, takes the point that said count is indefinite in its averments as to the scope and nature of said Smith's control over the defendant's truck; that it does not aver that he was the driver of said truck and had physical control of its movements on the highway.

'In actions based on misfeasance or non-feasance, the rule, as settled by our decisions, is that, when the complaint avers the facts from which the duty arises, a general averment of negligence is sufficient under our system of pleading. The pleader is not required to specify the particular acts or omissions, from which the conclusion of negligence is deducible.' Mobile & Ohio R. Co. v. George, 94 Ala. 199 [214], 10 So. 145, 150; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73, and cases cited supporting the second headnote, pp. 35, 36, and p. 75 respectively.

Nevertheless when the injury or loss results from active force applied and arises under the doctrine respondeat superior, the rules of good pleading require that, the complaint by way of inducement show the instrumentality causing the injury, and that the agent or servant to whose acts negligence is ascribed had actual manual control of such instrumentality or was present directing its movement. Doullut & Williams v. Hoffman, supra, and other authorities cited supra; Graham v. Werfel, 229 Ala. 385, 157 So. 201; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Strickland v. Davis, 221 Ala. 247, 128 So. 233; Burns v. Blythwood, 236 Ala. 639, 184 So. 346.

The averments of said count one, construed most strongly against the pleader, are subject to the interpretation that Smith's control was merely official and supervisory, and not the actual manual operation of the truck, and was subject to the defect last above stated which was pointed out by the specific grounds of demurrer, and the court erred in overruling the demurrer. This error, however, was rendered innocuous by the undisputed proof that Smith was in fact an employee of the defendant oil company, was the driver of said truck, acting within the line and scope of his employment. Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D, 929; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.

Defendants pleaded the general issue, in short by consent, with leave to give in evidence any matter which if well pleaded would constitute a defense to the action.

The defendants offered in evidence seven photographs taken after the collision which are made Exhibits 1, 2, 3, 4, 5, 6 and 7, Exhibits 1, 2, 3, 5 and 7 were admitted without objection, but the court on objection of plaintiff refused to admit in evidence Exhibits 4 and 6. The purpose for which Exhibits 4 and 6 were offered, as stated by counsel, was to show the position of defendants' truck on the highway after the collision, it being shown by evidence before the exhibits were offered that a part of the other truck had been removed before the pictures were taken. After examining said photographs we are of opinion that the defendants had full benefit in the photographs which were received in evidence. Exhibit 4 appears to have been taken close to the scene while the fire was raging and does not give a clear view of the oil tank trailer which is much clearer in Exhibit 5; and Exhibit 6 shows nothing but a mass of wreckage, which apparently covered more than half of the highway after the fire had subsided, and is substantially the same as Exhibit 7.

The defendant also had the full benefit of the diagram made by the witness Bates showing the position of the defendants' truck and trailer when Bates, the highway patrolman, arrived on the scene before the photographs were taken, and admitted by Smith to be correct. In these circumstances the court will not be put in error for rejecting the two exhibits four and six.

The appellants insist that they were entitled to the affirmative charge which they requested in writing and which the court refused. The basis of this insistence is, to quote from brief----

'The only direct evidence with reference to the position of the transport truck in the highway immediately before and at the time of the accident is that of Appellant Smith himself, who testified positively and definitely that at all times immediately before and at the time of the accident, the transport truck was being driven on its proper side of the highway. It was Appellee's theory and assumption in the trial below that the transport truck was being operated on the wrong side of the highway just before the accident and that this condition caused the driver of the hog truck to cut to his right too far and to run into the concrete post. In an effort to sustain this theory, the Appellee offered the testimony of some witnesses, who on direct examination testified that in their judgment the left rear corner of the transport trailer was near or over the center line of the highway,--however, these same witnesses on cross examination admitted that they could not be certain about this. From the testimony of these witnesses Appellee insisted that the jury had a right to assume that the transport truck was being negligently operated on the wrong side of the highway before the collision. * * *

'Even if it should be assumed that the left rear end of the transport trailer was near or over the center of the highway, we take the position that such fact would not justify the submission of this case to the jury. If this fact should be established by the evidence, which we challenge, this fact alone would not establish liability unless it was shown further that the act of driving on the wrong side of the highway was the proximate cause of the injury [Morrison v. Clark, supra (196 Ala. 670, 72 So. 305); Teague v. Alabama Coca Cola Bottling Co., supra (209 Ala. 205, 95 So. 883)]. The evidence is without dispute that the immediate, direct, efficient cause of the collision was the striking of the concrete guardrail post by the hog truck. What caused the hog truck to run into the concrete post is the pivotal question. * * *.' [Parenthesis supplied.]

The evidence is without dispute that the scene of this tragedy occurred about one-half of a mile north of the village of Bangor in Blount County, Alabama, on what is referred to in the evidence as a straight-a-way connecting an S curve, the point of collision being 60 feet from the end of the northern curve and approximately half way between the termination of the southern curve and the northern curve. Otherwise stated the straight-a-way was about 120 feet in length. At this point the highway passes through a...