Wright v. Rowland
| Decision Date | 20 November 1981 |
| Citation | 406 So.2d 830 |
| Parties | Jimmy L. WRIGHT, etc. v. William E. ROWLAND, Individually and as an agent, Pressure Concrete Companyand/or M. P. C. Leasing. 80-214. |
| Court | Alabama Supreme Court |
Gregory S. Cusimano and Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
Howard B. Warren, of Torbert, Turnbach & Warren, Gadsden, for appellees.
Plaintiff Jimmy L. Wright filed this action in Etowah Circuit Court against defendants William E. Rowland and Rowland's employer, Pressure Concrete Company, seeking to recover damages for the wrongful death of his minor son, James Lewis Wright. The son was killed on March 22, 1978, while riding as a passenger on a motorcycle when one of Pressure Concrete's trucks, being driven by Rowland, collided with the motorcycle. The jury returned a verdict for plaintiff and against both defendants in the amount of $15,000.00. Plaintiff subsequently filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Plaintiff appealed on December 22, 1980. We affirm.
On appeal plaintiff contends that the trial court's oral charge to the jury constituted reversible error. Initially, the charge contained several references to the negligence of "either defendant" or "both defendants." The attorneys for both sides objected that the instructions incorrectly indicated that Pressure Concrete, the employer, could be found liable without a finding against Rowland, the employee. In response to the objections the court gave the following instruction:
Ladies and gentleman, you could not return a verdict in this case against Pressure Concrete Construction Company unless you returned a verdict against Rowland also. And that amount could not exceed what the amount that would be assessed against Rowland (sic).
Plaintiff contends that this instruction did not correct the error originally objected to by the parties and, in effect, suggested that the jury apportion damages between the joint tortfeasors, Rowland and Pressure Concrete. In Alabama, however, damages cannot be apportioned between or among joint tortfeasors. Robbins v. Forsburg, 288 Ala. 108, 257 So.2d 353 (1971). Thus, according to plaintiff the last charge was erroneous and harmfully misleading.
On appeal, the entire charge must be reviewed to determine if there is reversible error. Price v. Jacobs, Ala., 387 So.2d 172 (1980). Read in its entirety and looking to the total effect of the charge we cannot say the jury was misled into apportioning damages or that plaintiff was prejudiced. During the course of the charge, the court stated:
When a principal or master is sought to be held liable for the actions of a certain agent, servant or employee, there can be no recovery against the principal or master unless there is recovery against the agent, servant or employee. And then only to the extent of the liability of such agent, servant or employee. A principal is liable to others for the negligent acts or omissions or his agent done within the scope of his employment and within the line of his duty. And when a master places at disposal of the servant a vehicle to be used by the servant in going to and from his work and such transportation arrangement is beneficial to both of them, the relation of master and servant continues while the automobile is used for such purposes. It is not denied or disputed in this case, ladies and gentlemen, that William E. Rowland was an employee of Pressure Concrete Construction Company and was acting for them at the time of the accident.
That charge is taken from Alabama Pattern Jury Instruction Number 3.05 (hereinafter APJI 3.05). The charge, when viewed as a whole, clearly explains that Rowland was...
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