Williams v. Wicker

• Decision Date: 17 February 1938
• Docket Number: 2 Div. 106
• Citation: 179 So. 250,235 Ala. 348
• Parties: WILLIAMS v. WICKER.
• Court: Alabama Supreme Court

179 So. 250

235 Ala. 348

WILLIAMS v. WICKER.

2 Div. 106

Supreme Court of Alabama

February 17, 1938

Appeal from Circuit Court, Bibb County; John Miller, Judge.

Action by George G. Williams, as administrator of the estate of Elizabeth Williams, deceased, against C.A. Wicker, doing business as Wicker Transfer for damages for death of deceased in automobile collision. From a judgment for defendant plaintiff appeals, and defendant moves to strike the bill of exceptions.

Motion denied, and judgment affirmed.

Smith Windham, Jackson & Rives, of Birmingham, for appellant.

J.P Mudd, of Birmingham, for appellee.

GARDNER Justice.

On the Motion.

This suit is under our homicide statute to recover damages for the death of plaintiff's intestate caused by a collision of the automobile in which said intestate was riding with the defendant's truck. There was verdict for defendant, and judgment thereon October 16, 1936.

Motion by plaintiff for a new trial was filed November 13th thereafter, which was duly continued to November 28, 1936, at which time an order was entered for submission on this motion, and the same "taken under advisement." On February 27, 1937, the motion was overruled, and the bill of exceptions presented May 25, 1937.

Appellee insists that the motion lapsed because carried over into another term of the court, and of consequence no valid judgment on the motion could then be entered (citing Richards v. Williams, 231 Ala. 450, 165 So. 820), and that, therefore, the ninety-day period for signing the bill of exceptions would commence from the date of the original judgment in the cause. Other cited authorities are Ex parte Adams, 216 Ala. 353, 113 So. 513; Horne v. Drivers, Inc., 24 Ala.App. 557, 138 So. 427; Cooper v. Owen, 230 Ala. 316, 161 So. 98; Folmar v. First National Bank, 223 Ala. 625, 137 So. 777; Section 6670, Code 1923; Ex parte Howard, 225 Ala. 106, 142 So. 403; Van Schaick v. Goodwyn, 230 Ala. 687, 163 So. 327.

Under section 6667, Code 1923, there were two terms of the circuit court, as follows: First, from the first Monday in January to and including the last Saturday of June of every year; and, second, from the first Monday after the Fourth of July to and including the last Saturday before Christmas of every year. But this section was amended so as to eliminate these terms, and, as amended, the "Circuit Courts of the several Counties of the State shall be open for the transaction of any and all business, or judicial proceedings of every kind, at all times." General Acts, Ex.Sess.1936, p. 32.

But appellee would avoid the effect of this amendatory act by applying the thirty-day limitation as to judgments in section 6670, Code of 1923. That section is not, however, here involved.

The motion in the instant case was seasonably filed, and continued to date of submission when it was taken under advisement. This submission and taking the motion under advisement operated to keep the motion alive until the end of the term, as held in Greer v. Heyer, 216 Ala. 229, 113 So. 14, and the trial of the motion constructively in progress until the judgment is rendered. To like effect, see Ex parte Adams, 216 Ala. 353, 113 So. 513; Cooper v. Owen, 230 Ala. 316, 161 So. 98.

As now amended, section 6667 of the Code abolishes the matter of terms of court, and we think the case of Greer v. Heyer, supra, and others of like tenor, should here control. Under these decisions the motion was kept alive and the hearing regarded as pending, the trial of the motion considered as constructively in progress until judgment thereon. So considered, the bill of exceptions was presented in time, and the motion to strike will accordingly be here denied.

On the Merits.

Deceased was riding in a Plymouth car, owned and operated by her husband, plaintiff, George G. Williams, on a public highway, some five miles from Woodstock, Ala., when there was a collision with a truck upon the chassis of which rested a trailer. The collision occurred about 5:30 o'clock in the afternoon while it was raining. That plaintiff's intestate lost her life as a result of the collision, and that the truck was being operated by a servant or agent of defendant, acting within the line and scope of his authority, were not controverted questions on the trial.

The whole case turned upon the one question of fault in operation of the two motor vehicles. The count upon which, for the plaintiff, the case was tried, sought recovery for simple negligence, and there was no plea of contributory negligence; the only plea being the general issue.

No details of the evidence need be here narrated.

Briefly stated, it is plaintiff's theory that as the Williams' car was being driven up the hill in the rain on the proper (that is, the right) side of the road, defendant's truck, approaching from the opposite direction, cut sharply across the road into the path of the Williams' car, which was then cut sharply toward the center to avoid the fatal collision.

Defendant contends, on the contrary, that his truck, properly equipped with brakes, was proceeding at a moderate speed down the hill on its correct side of the highway with the Williams' car approaching on the same side, that is, on the wrong side of the road for the Williams' car, and that as soon as the driver of the truck discovered the Williams' car would not get back to its proper place on the road, he cut abruptly to the left in order to avoid a head-on collision.

Evidence was offered by the parties in support of their respective contentions, and was in sharp conflict for the jury's consideration.

For a reversal of the judgment, plaintiff rests largely upon the action of the trial court in giving, at defendant's request, written charge A-9, which appears in the report of the case, relating to the question of the sole proximate cause of the accident.

To fasten liability upon defendant any negligence on his part must, of course, be the proximate cause of the injury. But, "if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last proximate cause, and refuse to trace it to that which was more remote." Alabama G.S.R. Co. v. Vail, 142 Ala. 134, 38 So. 124, 126, 110 Am.St.Rep. 23; Garrett v. Louisville & Nashville R. Co., 196 Ala. 52, 71 So. 685; Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277; Hammett v. Birmingham Ry. L. & P. Co., 202 Ala. 520, 81 So. 22; Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 471, 93 So. 512; 45 Corpus Juris 928.

Here, plaintiff's intestate is charged with no negligent conduct. There was no plea of contributory negligence, nor was there any charge of wanton conduct. The pleadings and proof presented but one issue; whether or not defendant was guilty of negligence which proximately produced the injury.

Defendant answers by saying that he was not only guilty of no negligence, but that in truth and in fact the intervening efficient and proximate cause of the collision resulting in the death of plaintiff's intestate was the negligent conduct of Williams in the operation of his Plymouth car; and that, at most, whatever was done by him in the operation of his truck merely furnished the condition or gave rise to the occasion by which the injury was made possible. Garrett v. Louisville & N.R. Co., supra.

Given charge A-9 but gave emphasis to this theory of the law as applicable to the pleadings and proof in this case, and confessedly finds support in Birmingham Ry., L. & P. Co. v. Ely, 183 Ala. 382, 62 So. 816, and Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642, 646.

In the latter case, Karpeles v. City Ice Delivery Co., supra plaintiff's intestate was a guest passenger on a motorcycle, and the following statement in the opinion is equally applicable here: "If defendant's agent exercised due care, then of course the death of plaintiff's intestate must be referred to the negligence of the driver of the motorcycle, or, in the absence of that, to...