Watkins v. Reinhart

• Citation: 243 Ala. 243,9 So.2d 113
• Decision Date: 12 March 1942
• Docket Number: 6 Div. 910.
• Parties: WATKINS et al. v. REINHART.
• Court: Supreme Court of Alabama

9 So.2d 113

243 Ala. 243

WATKINS et al. v. REINHART.

6 Div. 910.

Supreme Court of Alabama

March 12, 1942

Rehearing Denied June 30, 1942.

Coleman Spain, Stewart & Davies and H.H. Grooms, all of Birmingham, and Russell W. Lynne, of Decatur, for appellant.

Harsh, Harsh & Hare, of Birmingham, for appellee.

Hill, Hill, Whiting & Rives, of Montgomery amici curiae.

BROWN Justice.

This is an action on the case by the administrator of Anna M Reinhart, deceased, under the Homicide Act, Code of 1923, § 5696, Code of 1940, Tit. 7, § 123, against appellant Watkins engaged in the business of a common carrier of freight, as defined by the Tidwell Act, Acts of 1932 Extra Session p. 178, Code of 1940, Tit. 48, § 270, and his insurer, to recover damages "for the wrongful act, omission or negligence" causing intestate's death, charged in the single count of the complaint to have been committed by said Watkins. Hood v. State, 230 Ala. 343, 162 So. 543.

Said count avers, that on the 9th of May, 1940, plaintiff's intestate was riding as a passenger in an automobile on a highway in the State of Alabama, and "a truck, of which, on said occasion, the defendant Watkins was in charge or control" collided with the automobile in which said intestate was riding.

"And plaintiff avers that on said occasion the defendant Watkins negligently caused or negligently allowed said motor vehicle, to-wit, a truck of which on said occasion he was in charge or control, to collide with the automobile in which plaintiff's intestate was riding on said occasion, and as a proximate consequence of said negligence of said defendant Watkins, plaintiff's intestate was, as aforesaid, so injured that she died."

The defendant, after demurrer to the complaint was overruled, interposed the plea of not guilty, and the trial resulted in a verdict and judgment for the plaintiff.

The first contention here made by appellant is that the surety's liability is contractual and it is not liable in a tort action for the misfeasance or nonfeasance of the insured. This contention is without merit. The statute prescribes that the liability assumed, whether evidenced by bond or policy of insurance shall be "for the protection of the public (other than the passengers of, or the shippers of freight by, such carrier) in the collection of damages for which the carrier may be liable by reason of the operation of any motor vehicle subject to the provisions of this article," and is limited to "five thousand dollars for the death of or injury to any one person, and ten thousand dollars for the damages caused by any one accident or occurrence." Code of 1940, Tit. 48, § 295. These provisions by force of the statute must be read into the contract of indemnity, and while as between the insurer and the insured the insurer's liability is contractual, as to third persons falling within its protection the insurer stands, so to speak, in the shoes of the insured, and is subject to suit jointly with the carrier in an action of tort. Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58; Fidelity & Casualty Co. of New York v. Jacks, 231 Ala. 394, 165 So. 242; Auto Mut. Indemnity Co. v. Moore et al., 235 Ala. 426, 427, 179 So. 368; State v. Alabama Power Co., 230 Ala. 515, 162 So. 110. [Italics supplied.]

A striking analogy is found in suits against officers and their sureties, where as between the officer and the surety the obligation is contractual, but as to third persons the surety is liable in tort. Randolph et al. v. Brown, 115 Ala. 677, 22 So. 524; Deason v. Gray et al., 192 Ala. 611, 69 So. 15; Barrett v. Gilbert et al., 227 Ala. 94, 148 So. 801.

The right of the plaintiff to sue the principal and surety or insurer and insured jointly, arises out of the nature of the obligation of the surety or insurer and the purpose of the statute to protect those injured by the wrongful act, omission or negligence of the carrier proximately resulting from the operation of its motor vehicles, in "the collection of damages for which the carrier may be liable." Code of 1940, Tit. 48, § 295.

The further contention that the Tidwell Act, embodied in the Code of 1940, Article 2 of Tit. 48, is superseded and repealed by the Dominick Act, No. 669, Acts 1939, p. 1064; Supplement Code 1940, Tit. 48, Articles 3 and 4, is not here material. The plaintiff's right of action, taking the averments of the complaint as true, as must be done on demurrer, arises out of said collision occurring on May 9, 1940, and the action was brought on September 18, 1940. The Dominick Act, though passed and approved July 5, 1940, did not go into effect until the 3rd of October, 1940. The fact that the Legislature postponed the effective date of the statute for ninety days after its passage and approval, evinces a legislative intent not to make its provisions retroactive as to existing rights and remedies. The Dominick Act, the effective date of which is thus postponed brings it within the spirit of the last clause of § 95 of the Constitution, which provides: "After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit." Constitution 1901, § 95; McGowin Lumber & Export Co. v. McDonald Lumber Co., 186 Ala. 580, 64 So. 787; Goulding Fertilizer Co. et al. v. Blanchard, 178 Ala. 298, 59 So. 485; State v. Youngstown Mining Co., 219 Ala. 178, 121 So. 550; Barrington v. Barrington, 200 Ala. 315, 76 So. 81.

If it be conceded that the complaint is inconsistent in claiming $15,000 as damages of Watkins, and $5,000 of the Standard Accident Insurance Company, and was subject to demurrer, the overruling of the demurrer in the instant case, if error, was without injury. The statute, as above noted, limits the amount of the liability to $5,000 and the sum awarded against both defendants did not exceed that amount. The complaint was not subject to the objections made by the demurrer, that there was a misjoinder of parties or of causes of action.

The circuit court did not commit reversible error in denying the defendant's motion to require the witness, Mrs. Alford, to turn over to the attorneys the private file of the Aetna Insurance Company, the insurer carrying liability on the Buick Automobile. The witness, Moore, whose testimony, it was stated, would be inconsistent with the written statement in said file made by him, had not been offered as a witness. His examination by the plaintiff and testimony in conflict with said statement were essential to the materiality of said written statement. Moreover the defendants were furnished with said written statement on the trial and they offered it in evidence.

Moon's filling station at which the witness Hiram Moore was working at the time of the collision was on the east side of the highway from fifty to two hundred and more yards north of the place of the collision. Moore testified on direct examination that:

"When the accident happened, the gas pumps were in front of the filling station, so people coming along the highway could get gas here. I did see the ladies in the Buick when they passed the filling station going towards Birmingham. As to the speed Buick car was making, as it went along there, I could not say for sure. My best judgment I feel around 35 miles an hour. Yes, they seemed to be on their righthand side of the road at that time. They were traveling along the normal way a car would travel on this side of the paved highway. No, I did not form any accurate judgment about the speed of the truck, because the truck was coming towards me and I could not tell." [Italics supplied.]

Here counsel for plaintiff asked the witness:

"Q. Did you observe and form any judgment on which you could tell the jury, whether in your opinion the truck was going slower or faster than the car with the ladies in it?"

The defendants objected on the ground "that the witness stated he did not form any judgment and the question called for a comparison." This objection was well taken. What followed as an answer is purely a conclusion, as the record shows, formed at the instant of giving such answers. The report of the case contains what the record states as a "colloquy * * * between the witness and the Court." This was one of the vital points in the case and we are of opinion that the overruling of the objection constituted reversible error. It was the province of the jury and not the witness to make comparisons and draw conclusions. 20 Am.Jur. 987, 989, § 805; Seager v. Foster, 185 Iowa 32, 169 N.W. 681, 8 A.L.R. 690; Messer v. Dupuy-Burke Realty Co., 226 Ala. 438, 147 So. 193; Brandon v. Progress Distilling Co., 167 Ala. 365, 52 So. 640. In the case last above cited it was observed:

"A witness may state his judgment as to the existence vel non of facts where the facts stated were collective facts and the judgment of them was based upon knowledge of all the constituent elements." 167 Ala. at page 368, 52 So. at page 641.

The witness Moore did not have knowledge of the constituent elements. He did not know how fast the truck was moving and hence could not make the comparison as to the speed of the two vehicles, and his impressions, as his testimony shows, were formed, not at the time of the occurrence, but after he took the stand as a witness.

This witness testified on his direct examination:

"Yes I saw the Buick car. At the time the collision between the truck and the automobile took place, as to where the Buick car was with reference to the center line of the highway, I answer: As the ladies passed the filling station in the Buick car, they were on the righthand side of the road and I...