Southern Bitulithic Co. v. Perrine

Decision Date07 November 1914
Docket Number413
PartiesSOUTHERN BITULITHIC CO. v. PERRINE.
CourtAlabama Supreme Court

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by Lillian Perrine against the Southern Bitulithic Company and the City of Birmingham. There was a judgment for plaintiff as against the Southern Bitulithic Company and for the City, and the Southern Bitulithic Company appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Denson & Denson, of Birmingham, for appellee.

MAYFIELD J.

Appellee sued appellant and the city of Birmingham to recover damages for personal injuries, the result of her stepping into a hole or depression in the sidewalk or street at or near the junction of Twentieth street and Park avenue.

It was claimed by plaintiff that appellant had contracted with the city of Birmingham to pave Park avenue, and that in doing this work it had negligently left the hole or depression into which plaintiff fell.

The trial was had on the general issue on count 8 of the complaint. The gravamen of this count was as follows:

"Plaintiff fell into an excavation in said avenue, which excavation was made as follows: The city of Birmingham entered into a contract with the Southern Bitulithic Company to pave said avenue, and as a part of said contract said Southern Bitulithic Company agreed to take up and reset the curbing of said avenue and said excavation was the hole left in the ground by the taking up of said curbing by said Southern Bitulithic Company in executing said contract. *** Said injuries were proximately caused by the negligence of the defendants which negligence consisted in this, the defendants negligently failed to take reasonable precautions necessary to prevent people in the lawful use of said avenue from falling into said excavation."

The trial resulted in a verdict in favor of one defendant, the city of Birmingham, but against the other defendant (appellant) for $3,750, from the judgment for which amount the latter prosecutes this appeal.

There can be no doubt that appellant can prosecute this appeal, and sever, and separately assign errors, as has been done in this case. While there was but one judgment, it was not such a joint judgment that both defendants must unite in the appeal. The interest of the defendants in the judgment was not joint or mutual. Their interests were separate, distinct, and different, one from the other. The interest of the city was that it should not be reversed, while the interest of the paving company was that it should be reversed. There is no joint liability established by this judgment, but a several one. The liability alleged was both joint and several; that is, it was one in tort against two defendants. But the verdict and judgment made it several only, and the plaintiff failed as to the joint feature alleged, and she does not complain on this appeal. The paving company is therefore the only proper party to complain, it being the only one against whom judgment was rendered. The city could not assign errors even if it were a party and desired so to do.

Where there is one judgment against two or more defendants, which fixes a joint, or a joint and several, liability, all must join in the appeal, or one must appeal in the names of all and give notice to the others, and, if they fail to join in the appeal, have a severance but, where there is no joint judgment or no joint liability, the judgment fixing a several liability against one only, then, of course, the above rule as to joint judgments and liabilities cannot apply. Craig v. Carswell, 4 Stew. & P. 267; Hunt v. Houtz, 62 Ala. 36.

The defendant paving company denied all the material matters alleged, and also sought to show that if there was any negligence in making the excavation, or in failing to guard or protect the public who were using the street from falling into the same, it was the negligence of one William Findley, employed by the appellant, as an independent contractor, to do the work in question, alleged to be not intrinsically dangerous to the public; and that for the mere negligent execution of the work the appellant was not liable.

This was made one of the contested questions on the trial, and the evidence is not without conflict on this issue. Hence the trial court properly declined to give the affirmative charge on this theory of the defense.

There was evidence from which the jury might infer that the capacity in which Findley was working was not that of an independent contractor, but was such as to make the appellant liable in this case for his negligence in the execution of the work intrusted to him by the appellant.

This question being made an issue in the case, it was competent and proper for the plaintiff to introduce proof of any circumstance which tended to show the relation of Findley to appellant,...

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7 cases
  • Zimmern v. Standard Motor Car Co.
    • United States
    • Supreme Court of Alabama
    • April 21, 1921
    ......995; Morrissett v. Wood, 123 Ala. 384, 391,. 26 So. 307, 82 Am.St.Rep. 127; South. Bitulithic Co. v. Perrine, 191 Ala. 411, 418, 67 So. 601; Briggs v. B.R., L. & P. Co., 194 Ala. 273, 69 So. ......
  • Johnson v. Battles
    • United States
    • Supreme Court of Alabama
    • March 1, 1951
    ...evidence will not be disturbed on appeal except for palpable abuse. Kirby v. Brooks, 215 Ala. 507, 111 So. 235; Southern Bitulithic Co. v. Perrine, 191 Ala. 411, 67 So. 601; Neyman v. Alabama Great Southern R. Co., 174 Ala. 613, 57 So. 435. We are not willing to say that it is made to appea......
  • Steele-Smith Dry Goods Co. v. Blythe
    • United States
    • Supreme Court of Alabama
    • October 26, 1922
    ...Moreover, the witness was guarded and conservative in his answers as to the future effect the illness might produce. Southern Co. v. Perrine, 191 Ala. 411, 67 So. 601; B. R. & L. Co. v. Fisher, 173 Ala. 627, 55 So. Briggs v. B. R. L. & P. Co., 194 Ala. 273, 69 So. 926; Pullman Co. v. Meyer,......
  • Wilson v. State
    • United States
    • Supreme Court of Alabama
    • February 10, 1916
    ...must be left largely to the discretion of the trial court, and particularly so, doubtless, in cross-examination of witnesses (Sou. Bit. Co. v. Perrine, supra; Mitchell v. Grant, 143 Ala. 194, 38 So. 855); and that the court's decision on these questions will not be revised, unless it is mad......
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