Stephens v. Walker

• Citation: 117 So. 22,217 Ala. 466
• Decision Date: 10 May 1928
• Docket Number: 6 Div. 9
• Parties: STEPHENS v. WALKER.
• Court: Supreme Court of Alabama

117 So. 22

217 Ala. 466

STEPHENS v. WALKER.

6 Div. 9

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by Z.L. Stephens, as administrator of the estate of James Henry Stephens, deceased, against H.H. Walker, as trustee in bankruptcy of the estate of the Jefferson Dairy Company, for wrongful death of intestate. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Jacobs & Carmack, of Birmingham, for appellant.

London Yancey & Brower, and Whit Windham, all of Birmingham, for appellee.

THOMAS J.

The suit is for personal injury caused by the negligence of defendant's servants, agents or employees of the trustee in bankruptcy in temporary operation of business of the estate of the bankrupt corporation.

The general affirmative charge was given for defendant on request therefor in writing. The recitals in the bill of exceptions are sufficient to present for review that ruling.

A bill of exceptions is construed most strongly against the exceptor so as to sustain the trial court's ruling. Ill. Cent R. Co. v. Posey, 212 Ala. 10, 101 So. 644; First Nat. Bank v. Meeks, 208 Ala. 534, 94 So. 527; Belton v. State, 212 Ala. 265, 102 So. 220. Where the bill of exceptions fails to show that it contains all the evidence the state of the evidence will be presumed to uphold the judgment, or ruling of the trial court in the giving or refusing of general affirmative instruction. Beard v. Du Bose, 175 Ala. 411, 57 So. 703, 63 So. 318; First Nat. Bank v. Meeks, supra; Sherrill v. L. & N.R.R. Co., 148 Ala. 1, 44 So. 153; Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358, 90 Am.St.Rep. 914; Ventress v. Town of Clayton, 165 Ala. 349, 51 So. 763. The instant bill of exceptions recites that this was all the evidence in the case. The employment of such words as "these or those two buildings," "this property," "beyond this," that "gasoline filling station," back "there kinder side of the building," or "adjoining this property," would not reasonably imply such omission of evidence, as pictures or diagrams, as to overcome the positive recital that all evidence adduced on the trial was included in the bill of exceptions. L. & N.R.R. Co. v. Jenkins, 196 Ala. 136, 140, 72 So. 68; Jefferson v. Republic Iron & Steel Co., 208 Ala. 143, 93 So. 890; Fayet v. St. Louis, S.F.R. Co., 203 Ala. 3, 81 So. 671; Ala. G.S. Ry. Co. v. Cornett, 214 Ala. 23, 29, 106 So. 242; Burton & Sons Co. v. May, 212 Ala. 435, 103 So. 46.

The agreement of counsel dispensed with other proof as to right of maintenance of suit against H.H. Walker, as trustee of the bankrupt's estate, of Jefferson County Dairy Company. The admission was that defendant did operate as trustee, and naturally implies that he so operated at the times in question with due authority. The case of Ferrell v. Ross, 200 Ala. 90, 75 So. 466, is not to the contrary. It was there held that the suit was against defendant personally, and the agreement of counsel that defendant "was operating *** as receiver," in the absence of evidence to the contrary, was no proof to sustain a verdict against defendant as an individual.

The scintilla rule affecting the giving of affirmative instruction need not be repeated. London, etc., Co. v. McCree, 213 Ala. 534, 537, 105 So. 901; McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

It was admitted that the plaintiff was the qualified administrator of the decedent; that defendant was at the times in question the duly elected, qualified, and acting trustee in bankruptcy of the estate of the Jefferson Dairy Company, and in such representative capacity was operating the plant at the time and place of the injury; that Seventh avenue was a public thoroughfare of the municipality at the time the decedent was burned. The gasoline station for defendant, used for filling its trucks and those of its employees, set back from that avenue about four or five feet from the inside line of the sidewalk; that defendant's truck was being filled with gas as it faced the street and projected about six feet beyond the filling station; that "nobody was on the truck (according to witness McCartney) except a white boy who was standing on the running board and filling the truck," and decedent was standing about a foot out in front of the truck and about four feet from the curb. There was not "any sidewalk there, that is, no paving," and the paved sidewalk along this avenue west of the filling station "is back about four or five feet from the curb." The decedent, "who was burned, was standing out in front of it [the truck]," about a foot therefrom. The witness McCartney further testified that at the time of the explosion he was walking on the avenue about six or seven feet from the curbstone and about eight or nine feet from Stephens, when he received his burn; that the filling station was about eight feet back from where the curb line would have been had the curb been set, the street being graded and not paved; that there were present only the two white boys.

The witness Netherly testified that the pathway in front of the Jefferson Dairy Company along that street is on a line with the paved sidewalk further down; that the filling station sets back from the sidewalk about three feet from where the edge of the sidewalk would be up to the concrete; that the site of the pump is five feet from the sidewalk.

It would thus appear that an issue of fact was presented as to the location of Stephens--on defendant's premises or on the sidewalk--when he received the jet of flaming gasoline.

Furthermore, witness Perryman testified there was a negro boy who drove the truck to the station to be filled; that he did not shut off the engine, lighted a cigarette when Stephens was standing on the running board of the truck, and received the charge of burning gasoline; that the negro pulled the hose pipe out of the tank and threw gasoline on Stephens and upon the witness; that the negro was a helper on the truck for the driver, Mr. McCroy. The witness also testified that he acted for the defendant in running the gas station; that the truck was brought to him to fill, which he was doing in the discharge of his duty to defendant, at the time of decedent's injuries. Thus there was an adverse inference in the evidence as to who was in control of the truck at the moment it was being filled.

Whether the truck was in charge of Perryman was material in view of evidence to be later adverted to, that some one moved the machine without the driver's knowledge when he went into the office. Perryman knew the motor should be cut off; that it was dangerous to fill the machine while its motor was running; knew that Stephens was standing near and would probably be injured in the event of ignition of the gasoline. And such was the cause and fact of his injury. It is shown by the evidence the gas went on the ground when overflowed, and the flame flew up with the explosion of gasoline that "went out about ten feet." It was a material issue of fact as to the cause of the explosion, whether by reason of the motor running with a "leaky exhaust pipe" in the machine, or whether it was caused by the lighting of a match for a cigarette. As to these material facts there were divergent reasonable inferences that may have been drawn by the jury, if they had been permitted to do so by the court.

There was the further fact that Perryman was an employee of defendant, and McCartney was a disinterested passer along the street a the moment of the explosion. If there was no negro present and in charge of the car (as stated by McCartney), and no match was ignited, as stated by Perryman, and there could not have been if the negro was not present, then the explosion was caused by the negligence of defendant's agent in filling the truck with gasoline while the motor was running and in having a defective exhaust emitting a spark. Perryman knew that such method was highly dangerous and knew the close proximity of Stephens to the truck being filled. The evidence of Mitchell, an expert, supports the inference that such condition of facts would cause the explosion. He said: "It is a fact that a running motor in an automobile at times causes sparks." Thus there was a scintilla of evidence in reference to these material questions of fact that should have been submitted to the jury (McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Jones v. Bell, 201 Ala. 336, 77 So. 998; London, etc., Co. v. McCree, 213 Ala. 534, 537, 105 So. 901)--the location of Stephens when injured, if on company's property, whether there as an invitee, the cause of the explosion resulting in injury, and the defendant's servant's or agent's responsibility for the negligent condition or act proximately causing Stephens' injuries.

It should be stated of the evidence of Stephens' relation to defendant, or the capacity in which he came to or upon defendant's premises, that it is shown that Stephens, a short time before his death, was working for Duren, at the plant of the dairy company, with the knowledge and consent of said trustee and manager, as a helper to Mr. Duren in the conduct of defendant's business. It was the custom of the various drivers of trucks to employ a boy to help them in loading and delivering milk, and in otherwise discharging the required duties about the plant and along the route in the conduct of defendant's business. This was with the knowledge and consent of Mr. Walker, the trustee and manager of the dairy company. Mr. Duren had not paid Stephens for his work done for defendant, for the sufficient reason that the trustee Mr. Walker had not paid Mr. Duren. Mr. Walker had informed Duren that he would pay him on this particular day (on which Stephens was burned), and Mr. Duren had likewise...