Walker v. St. Louis-San Francisco Ry. Co.

Decision Date08 April 1926
Docket Number6 Div. 412
Citation214 Ala. 492,108 So. 388
CourtAlabama Supreme Court

Rehearing Denied May 6, 1926

Appeal from Circuit Court, Walker County; Ernest Lacey, Judge.

Action by Myra Walker, as administratrix of the estate of J. Duffie Walker, deceased, against the St. Louis-San Francisco Railway Company and Joseph Houppert. From a judgment granting the railway company a new trial, plaintiff appeals. Affirmed.

Thomas and Bouldin, JJ., dissenting.

Harsh Harsh & Harsh, of Birmingham, and Curtis, Pennington & Pou of Jasper, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.


The plaintiff recovered a judgment in the court below, and the trial court granted defendant's motion for a new trial and the plaintiff appeals.

It is well settled that, when the trial court grants a motion for a new trial, the same inferences and presumptions in favor of his action in doing so are indulged as would be in case he refused a motion for new trial, and this is so whether he assigns the proper reason for doing so or not.

It is settled law by the decisions of a majority of the states as well as the United States Supreme Court that, when the master is sued jointly with his servant for the misfeasance or malfeasance of said servant, and is liable for the conduct of said servant under the doctrine of respondeat superior, a verdict in favor of such servant entitles the master to have the verdict against him set aside. A Supreme Lodge v. Gustin, 202 Ala. 246, and numerous cases cited on page 252, 80 So. 84. Therefore, as the second count was against the defendant railroad and its engineer, and whose negligence was the gravamen of the action, and the jury found against the railroad and acquitted the engineer, it was the duty of the trial court to set aside the verdict upon a proper motion.

The case of A.C.L.R.R. v. Carroll, 208 Ala. 361, 94 So. 820, is in no wise in conflict with the authority above cited and cases referred to in said Gustin Case. There the suit was against the railroad, the town of Ozark, and Dowling, the agent of said town, who was the superintendent of its electric plant. Dowling testified that he strung the wires connecting the depot of the railroad with the town wires, and at the request of the railroad, but without cost. This in no sense made him the agent of the railroad, as he was doubtless doing this to get a customer for the light plant, but, conceding that he was an agent of the railroad, it was only temporary, and for the limited purpose of stringing the wires, and it terminated when this was done. A careful reading of the complaint will disclose that as against the railroad it does not proceed upon any negligence of Dowling in stringing the wires, but upon the negligence of the servants of the railroad in subsequently permitting said wires to get in a dangerous condition. The proof also showed that what negligence that was chargeable to the railroad grew out of conditions which arose subsequent to the stringing of the wires, and we held that the discharge of Dowling was not an act of which the railroad could complain. Had Dowling been the agent through whom liability was placed on the town of Ozark, the town should have been discharged, but said town did not even appeal.

It is insisted, and brought out in the opinion of Justice THOMAS (now the dissenting opinion), that the action of the trial court should be reversed, for the reason that the jury may have found for the plaintiff under count 4, which charged wanton misconduct to a servant or servants other than the engineer. As we understand, inferences and presumptions should be in favor of the trial court, and should not be indulged for the purpose of a reversal. Had the jury specified count 4 in their verdict that would have excluded count 2, but the jury found a general verdict. Moreover, the record fails to disclose a written or oral instruction informing the jury that they could not find against the railroad, unless they also found against the engineer, and it would be a rather violent presumption that the verdict was based on count 4 alone.

In this discussion we do not wish to hold or intimate that there was sufficient evidence to take the case to the jury under count 4 upon the idea that the fireman was guilty of wanton misconduct.

The judgment of the circuit court is affirmed.



THOMAS J. (dissenting).

The suit by an administratrix for the wanton injury and death of her intestate was against the defendant corporation and the engineer in charge of the engine causing the injury.

The first, third, and fourth counts charged both defendants with liability as joint tort-feasors, without specific reference therein to the doctrine of respondeat superior. Count 1, for simple negligence, was eliminated by the charge of the court. Count 2 was for the subsequent negligence of the engineer after discovery of the peril of the said intestate. The action of the court was not invoked by defendant to apply the principle of respondeat superior insisted upon in the motion for new trial; this count being susceptible to the doctrine. The general affirmative charge No. 23 was refused. The verdict, being in favor of the engineer, was therefore not rested upon count 2. The third count charges the "defendants wantonly and wrongfully caused or allowed" said engine to run upon or against or strike plaintiff's intestate, etc. The defendant corporation did invoke the doctrine as to this count in charge 46. However, the count was eliminated as to the corporation by given charges 58 and 60.

Count 4 charges each defendant with being a joint tort-feasor in causing the injury and death through a servant or agent "of defendants acting within the line and scope of his authority as such servant or agent of defendants wantonly and wrongfully *** allowing said locomotive engine to run upon or against or strike plaintiff's intestate," etc. Affirmative charges were requested and refused as to this count--12 to 17, inclusive. Charge 33, requested by defendants, "You are instructed that you cannot consider whether the fireman was looking or not looking under count 4," was refused. The foregoing charges are to be considered in connection with the assigned reason for the new trial: "that the court having [had] refused defendants' requested charges asserting said principle of law and the jury having [had] found the defendant railway company guilty and its engineer Houppert not guilty," etc.

The case was submitted to the jury on counts 2 and 4, and resulted in a verdict for plaintiff against the St. Louis-San Francisco Railway Company, and no reference was made to the other defendant. The effect of this verdict was a finding of not guilty as to the engineer. Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Wilder v. Bush, 201 Ala. 21, 75 So. 143; Flack v. Andrews, 86 Ala. 395, 5 So. 452; Clinton Co. v. Bradford, 200 Ala. 308, 76 So. 74. And the judgment for costs as to the defendant Houppert was duly rendered against plaintiff. Handley v. Lawley, 90 Ala. 527, 8 So. 101.

On motion of the defendant railway company, the judgment against it was set aside, and a new trial was granted; the assigned reasons being:

"*** The court is of the opinion that, inasmuch as the evidence showed without conflict that plaintiff's cause of action, at least in so far as it was presented by counts 2 and 3, was based upon the alleged wrongful or negligent act of the defendant Houppert committed while acting within the scope of his authority as engineer for the defendant St. Louis-San Francisco Railway Company, there could, according to the authorities cited in paragraph 18 in the case of Supreme Lodge Loyal O. of M. v. Gustin, 202 Ala. 246, 80 So. 84, be no recovery as against the railway company, unless there was also a recovery against the other defendant, said engineer, and, the court having refused defendant's requested charges asserting said principle of law, and the jury having found the defendant railway company guilty, and its engineer Houppert not guilty, it is therefore ordered and adjudged by the court that the judgment of the court and the verdict of the jury rendered against the defendant St. Louis-San Francisco Railway Company, in the above-entitled cause be, and the same are, set aside, and that said St. Louis-San Francisco Railway Company be, and it is, granted a new trial of this cause."

It has been declared that, where a count charges (in an action ex delicto) several defendants with a joint tort, and the evidence supports the count that one, or a less number of defendants than is charged, is found to be guilty, a verdict so rendered will be sustained. Southern Ry. Co. v. Arnold, 162 Ala. 570, 575, 578, 50 So. 293; Supreme Lodge, etc., v. Gustin, 202 Ala. 246, 80 So. 84; Wright v. Sample, 162 Ala. 222, 50 So. 268; Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Witcher v. Brewer, 49 Ala. 121, 122; Northern Ala. Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A.(N.S.) 670, 14 Ann.Cas. 1139. See Wright v. McCord, 205 Ala. 122, 88 So. 150; Roman v. Dreher, 1 Ala.App. 429, 55 So. 1015. The case of Torrey v. Forbes, 94 Ala. 135, 139, 10 So. 320, as to a discontinuance, has been qualified and explained by the foregoing decisions, and was expressly overruled in Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653. See Crawford v. Mills, 202 Ala. 62, 79 So. 456.

Plaintiff's intestate was killed at Dora by a train of the railway company operated by defendant Houppert as locomotive engineer. The train was a passenger train moving at a high rate of speed from Birmingham to Memphis, and, while...

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