Whiddon v. Malone

Decision Date10 October 1929
Docket Number4 Div. 440.
Citation124 So. 516,220 Ala. 220
PartiesWHIDDON v. MALONE.
CourtAlabama Supreme Court

Rehearing Denied Nov. 29, 1929.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action for damages for personal injuries by G. H. Malone against A D. Whiddon. From a judgment for plaintiff, defendant appeals. Affirmed.

O. S Lewis, of Dothan, and Rushton, Crenshaw & Rushton, of Montgomery, for appellant.

T. M Espy and Farmer, Merrill & Farmer, all of Dothan, for appellee.

BOULDIN J.

Action by G. H. Malone against A. D. Whiddon for personal injuries.

The complaint alleges that plaintiff, by invitation of defendant, was being carried in an automobile owned and operated by defendant along a public highway, and by reason of the negligence of defendant in operation the car was ditched and turned over, resulting in the injuries specified.

By special plea defendant set up that plaintiff and defendant had a business engagement and mission calling for a trip from Dothan to Montgomery and return; that the trip was taken in promotion of a joint enterprise; that each had a right to direct the movements of the other in respect to the joint enterprise and the movements and "conduct of each other in and about the operation of the car"; that the injury occurred on the return trip. Demurrer to such plea was sustained.

The law recognizes cases wherein two persons may engage in the operation of a car as a joint enterprise, each being the agent of the other, rendering both liable to third persons for the negligence of either.

The doctrine rests upon the present and common right to direct and control the movement of the car, thus imposing a duty on the coadventurer to see that it is driven by the man at the wheel with due regard to the rights of others on the highway. Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49; Note on Joint Adventure (subd. i) 48 A. L. R. 1077 et seq.

Incident to such relation, if one coadventurer in driving a car is injured by the concurring negligence of the other with that of a third person, such third person is absolved from liability. The negligence of the driver is imputed to his fellow, and is pleadable as contributory negligence. Beaucage v. Mercer, 206 Mass. 492, 92 N.E. 774, 138 Am. St. Rep. 401; Anthony v. Kiefner, 96 Kan. 194, 150 P. 524, L. R. A. 1915F, 876, Ann. Cas. 1916E, 264 and note; 20 R. C. L. p. 149, § 122, and p. 159, § 133.

That this plaintiff and defendant had common business interests in Montgomery, that they were on a trip relating to such business, and that plaintiff was invited by defendant to ride in his car, without more, would not make plaintiff a joint adventurer in the operation of the car even as to third persons. Plaintiff would occupy the position of passenger or invited guest.

Assuming, without deciding, that the additional averment of the plea above quoted would bring the case within the law as to third persons, it presents no defense as between the joint adventurers. The rule has no application to such case.

The duty not to injure another by wrongful or negligent act is common to all. A chauffeur driving for and in the presence of his master as an occupant of the car is liable for negligent injury to his master. The relation of master and servant tends rather to increase than to absolve the chauffeur from the duty of care. A servant is liable to the master by way of indemnity when the master has been forced to respond to another in damages for the torts of the servant. Huey v. Dykes, 203 Ala. 231, 82 So. 481; 31 C.J. 447.

On principle as well as authority the driver of a car who by his negligence injures a fellow passenger is liable without reference to any question of joint enterprise between them. He can defend only on the ground of contributory negligence as in other cases. He cannot impute contributory negligence for mere failure to anticipate and prevent his own negligent conduct. Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785, 789; 1 Berry, Automobiles (6th Ed.) p. 515.

Plaintiff testified that while driving along the highway between 8 and 9 o'clock in the forenoon, defendant lost control of the car, zigzagged across the road, ran off an embankment, and the car was overturned; that immediately thereafter defendant asked what had happened; witness replied, "We had a wreck"; defendant responded, "I went to sleep."

As for the ground for motion to exclude, it is sufficient to say only the party asking a question can object to an answer as not responsive. The opposing party may move to exclude on grounds going to the legality of the evidence.

Without extended discussion, we hold that going to sleep at the wheel while operating a car is evidence of negligence. The dangers of running a car while asleep are so obvious as to need no comment. It is the duty of the driver to keep awake or cease to drive. A failure so to do is prima facie evidence of negligence. The burden passes to the defendant to show some unusual cause of his falling asleep which reasonable diligence could not foresee nor forestall.

No question of contributory negligence in riding with a driver at the wheel for unreasonably long or untimely hours, or with one known to be so drowsy that he may probably fall asleep, is here involved.

The statement, "I went to sleep," was competent evidence, an admission against interest, one tending to show negligence. Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785, 791; Helton v. Ala. Mid. R Co., 97 Ala. 275...

To continue reading

Request your trial
63 cases
  • Pollard v. Rogers
    • United States
    • Supreme Court of Alabama
    • April 15, 1937
    ...... purposely discharge the gun injuring him, held not inadmissible. as being within the secret motive rule. See Whiddon v. Malone, 220 Ala. 220, 124 So. 516. . The. rule that obtains in this, and many other jurisdictions, with. authorities collected in ......
  • Liberty Nat. Life Ins. Co. v. Weldon
    • United States
    • Supreme Court of Alabama
    • November 14, 1957
    ...Express Co. v. Real, 253 Ala. 489, 45 So.2d 306; Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 13 So.2d 660; Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. The position of the de......
  • McGuff v. State
    • United States
    • Supreme Court of Alabama
    • August 2, 1946
    ...... 'although they may be subjective experiences,. [27 So.2d 245] . and cannot be directly contradicted.' Whiddon v. Malone, 220 Ala. 220, 124 So. 516, 518; Whistle. Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657. . . While. our decisions ......
  • In re Greene
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • May 18, 2000
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT