Whiddon v. Malone, 4 Div. 440.

CourtSupreme Court of Alabama
Writing for the CourtBOULDIN, J.
Citation124 So. 516,220 Ala. 220
Docket Number4 Div. 440.
Decision Date10 October 1929
PartiesWHIDDON v. MALONE.

124 So. 516

220 Ala. 220

WHIDDON
v.
MALONE.

4 Div. 440.

Supreme Court of Alabama

October 10, 1929


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. [124 So. 517]

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 [124 So. 518.] driver of a car who by his negligence injures a fellow passenger is liable without reference to any question of joint enterprise...

To continue reading

Request your trial
54 practice notes
  • Pollard v. Rogers, 5 Div. 243
    • United States
    • Supreme Court of Alabama
    • April 15, 1937
    ...he did not 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 support thereof, is stated in the n......
  • McGuff v. State, 6 Div. 423.
    • United States
    • Supreme Court of Alabama
    • August 2, 1946
    ...and the like, '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 leave the question under discussion unsettled, t......
  • In re Greene, Bankruptcy No. 99-04505-TBB-13. Adversary No. 99-00282.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • May 18, 2000
    ...relationship, what was made to look like a conditional sale was instead treated by Alabama's courts as a mortgage. Perkins, 124 So. at 516. This was not necessarily the end of the inquiry. For to be a legal mortgage, its requisites had to be met. See Richards v. Montgomery, 230 Ala. 307, 16......
  • 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. [267 Ala. 186] Arnold, 162 Ala. 570, 50 So. 293; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. The pos......
  • Request a trial to view additional results
58 cases
  • Pollard v. Rogers, 5 Div. 243
    • United States
    • Supreme Court of Alabama
    • April 15, 1937
    ...he did not 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 support thereof, is stated in the n......
  • McGuff v. State, 6 Div. 423.
    • United States
    • Supreme Court of Alabama
    • August 2, 1946
    ...and the like, '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 leave the question under discussion unsettled, t......
  • In re Greene, Bankruptcy No. 99-04505-TBB-13. Adversary No. 99-00282.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • May 18, 2000
    ...relationship, what was made to look like a conditional sale was instead treated by Alabama's courts as a mortgage. Perkins, 124 So. at 516. This was not necessarily the end of the inquiry. For to be a legal mortgage, its requisites had to be met. See Richards v. Montgomery, 230 Ala. 307, 16......
  • 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. [267 Ala. 186] Arnold, 162 Ala. 570, 50 So. 293; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. The pos......
  • 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