Waters v. Anthony, 6 Div. 783

• Decision Date: 25 October 1951
• Docket Number: 6 Div. 783
• Parties: WATERS v. ANTHONY.
• Court: Alabama Supreme Court

Page 589

54 So.2d 589

256 Ala. 370

WATERS v. ANTHONY.

6 Div. 783.

Supreme Court of Alabama.

Oct. 25, 1951.

Wm. S. Pritchard, Victor H. Smith, and Pritchard & McCall, Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

Plaintiff in the court below sued J. R. Waters, doing business as Delmar Theatre, and J. M. Lackey for loss of consortium, society, and services of his wife, and medical and other expenses incurred in connection with injuries sustained by his wife. The wife's case, Waters v. Anthony, 252 Ala. 244, 40 So.2d 316, was affirmed by this court after consideration of substantially the same evidence as was presented in this case. Plaintiff's wife entered the theatre owned by defendant Waters and managed by defendant Lackey. Plaintiff's evidence tended to show that the seat in which plaintiff's wife attempted to sit was defective in that the entire bottom was missing, and as a result she fell to the floor and injured herself. The jury returned a verdict for plaintiff in this case for $5,000.

As we read and interpret the brief filed by counsel for appellant, the only assignments of error urged and argued by appellant are those numbered 11, 14 and 15.

Assignment of Error numbered 15 reads as follows: '15. For that the action was against this appellant as the owner of the Delmar Theatre, and one Lackey, who was the manager and had charge of the operations of said theatre, and any negligence that proximately caused the alleged injury and damage of plaintiff was that of said defendant, Lackey, and the jury, by its verdict, exonerated the servant, Lackey, and that as a matter of law the lower court should have set aside the verdict returned by the jury against this appellant.'

In the wife's case defendants urged on appeal that there was no duty which defendant Lackey owed the plaintiff and that the affirmative charge should have been given as to him. However, this court held that 'it was for the jury to say whether he (Lackey) discharged his duty in the matter of the physical conditions of the seats.' After stating the rule as to the personal liability of the servant for an injury to a third person, the court held that the evidence was sufficient for the jury to find that Lackey had breached his duty to patrons of the theatre to use reasonable care in performing his duties as manager.

In the instant case the jury returned a verdict against defendant Waters alone. Counsel for Waters argue that this verdict is inconsistent and self-contradictory. In support of this they point out the language of the court in Waters v. Anthony, supra, and Carter v. Franklin, 234 Ala. 116, 173 So. 861, 863. In the previous case involving this same injury we undertook a discussion of the evidence to show that the finding of the jury that Lackey was guilty of negligence was justified. But we did not hold that the jury was required to find both defendants liable. It was a question for the jury as to whether Lackey had failed to use reasonable care in performance of his duties. The evidence in this case is not so compelling or overwhelming that the verdict exonerating Lackey is against the weight of the evidence. Indeed, such argument is not and could not be presented by defendant Waters. However, he argues that since Lackey has been acquitted of negligence, then he cannot be held liable. In the case of Carter v. Franklin, supra, the court said: 'In this connection we deem it proper to note that 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 employer 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 the facts in this case showed only that the negligence of Lackey was the sole basis on which Waters could be found liable, the verdict would be bad. However, the evidence showed that it was the duty of a colored maid to clean up the theatre every morning and to look for defective seats. Also the doorman was used at times for inspection of the seats, and did so during the entire month in which plaintiff's wife was injured. Under the evidence, the jury was authorized to find Lackey guilty of negligence or not. They could find Waters guilty of negligence either because of the negligence of Lackey or of some other servant or employee. The verdict in this case is not self-contradictory. Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 13 So.2d 660; F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534.

Assignment of Error numbered 11 is based upon the refusal of the trial court to give at defendant Waters' request Charge No. 29. The charge is as follows: 'I charge you gentlemen of the jury, that unless the alleged defect in the seat had existed for such length of time as to charge defendant J. R. Waters, in the exercise of reasonable care, with knowledge of its existence, your verdict should be for the defendant J. R. Waters.' Not only is the charge misleading...