*1 charge in in set out oral effect verdict to directed no occasion seeWe plain- the defendant Count to behalf evidence on opinion the support charged willful conduct, or wanton to we tends we think tiff must hold that permitting no error on the court the trial action part give of the trial under Count C. court to re- go jury to to case quest of plaintiff on defendant the written re- offered quested charges concerning material right is in all here under review trial prеsented recover under Count 8. respects the same as except trial plaintiff at second Charge Defendant’s refused witness, whose plaintiff called an additional an states principle incorrect of law and substantially the same as testimony was was refused completely without It error. Barfield plaintiff’s witnesses given ignores duty part the rail Sherman trial. on the second after discovery road of the on its deceased purpose for us It serve no useful tracks. оpinion with recitation to encumber this Reversible error appear not to this issue evidence as it relates in connection with the court’s action in subsequent viewed negligence. We have refusing defendant’s written Charge 17. presented appeal in the evidence on this Assuming without deciding that said sec- presented on the connection with that charge states principle law, a correct appeal go sufficient to ond which was held the court’s oral сharge Charge 21 given jury charge subsequent on the request at the of the adequately here, negligence, as we held and we hold jury informed the principles as to the at- appeal, second the trial court tempted to be Charge stated in 17. give refusing general err affirmative charge for the defendant as to The judgment of the trial court is af- subsequent negligence count. firmed. exceptions The defendant took to the Affirmed. charge oral and hence nothing charge presented oral for our STAKELY, MERRILL and COLE- appeal by
consideration on this the defend- MAN, JJ.,' concur. ant. is insisted railroad that
the cause should be ground reversed on the the trial court admitted in evidence
testimony tending to show that numbers of
people were accustomed
to cross
defend
defendant. We take note also of the fact
that on several during occasions the course trial this same was elicited
from witnesses the defendant.
Inasmuch as we have construed this rec- showing
ord as trial that the court in its *2 Tuscaloosa, Turner,
Turner & petitioner.
STAKELY, Justice. Laura H. Emerson Mrs. complaint filed her Court Circuit *3 County, Alabama, against Tuscaloosa King, B. doing King Lab- business as J. oratories, damages personal for claiming injuries purchase received as a result of the Tuscaloosa, use in County of Ala- bama, Pedolatum, manufac- by the tured for removal corns and calluses. complaint alleges
The the defend- ant sold the aforesaid Pedolatum to retail druggists Tuscaloosa, County Alabama, public, for including resale to the plaintiff, used for removal calluses, according corns and to the direc- printed defendant, tions on the label the aforesaid Pedolatum contained ingredients imminently harmful which were Ormond, Tuscaloosa, Jones, McEachin & inherently dangerous when used as respondent. directed purposes defendant for the for which it was intended.
Thе summons and affidavit attached to complaint stated that the defendant ais nonresident the State of post known his last office address was Jack- Road, Texas, Tyler, sonville and that provisions 7, 199(1), of Title 1955 Cumu- § Part, 1940, lative Pocket applicable obtaining process service of upon the defendant. Service of summons complaint upon were had Secretary State of the State of Alabama copy and a complaint of the summons and were mailed mаil, receipt by registered requested, return post to the defendant at the aforesaid Secretary address office State of State of receipt, and a return signed King, B. was received Secretary back office of State provided of the State of Alabama as 199(1), Title 1955 Cumulative Pocket § Part, Code of 1940. King, doing The defendant Dr. King Laboratories, as entered a
business special appearance and filed motion to quash process grounds service of on the (1) doing he was not business in Ala- (2) bama attached to defendants were not business'- the affidavit facts complaint not state in the State of Alabama at time of summons prior or at time there- aforesaid service sufficient to obtain service meaning provided 199(1), 199(1), Cumula- to within the by Title Part, Part, 1955 Cumulative Pocket Code tive Pocket of 1940. deposition King' 1940. The Dr. J. Warren, judge The Hon. W. C. by stipulation 474(1-18), was taken under § County, grant- Court of Tuscaloosa Circuit Pocket 1955 Cumulative Code- because ed the motion to the service 1940, Tyler, Texas. plaintiff’s “does not state affidavit *4 Henry previously W. Holland had been upon plaintiff the facts which the claims Tyler, Texas, taken in the same- Secretary through the to have right service prior statute to the first order of trial 199(1), provided in mail as of State quashing service. Pocket (1955 Cumulative 1940).” supplied. of Parentheses of each were- The motions defendant argued heard and before the Hon. W. C. complaint for her amended Warren, Judge of the Court of Circuit purpose party adding of as a County, Alabama, Tuscaloosa and each purpose Pedolatum Distributors and motion was and service of the required by Title amending of the affidavit complaint summons and on each defendant 199(1), as follows: Code of quashed ground on the the evi- of action made the basis “That the cause dence on the motion showed that the de- doing of busi- this suit arose out of of fendants were the- business in the defend- the State Alabama ness of State of Alabama. consisting and of the sale distribution ants drug or medicine named Pedolatum of depositions When of Dr. J. the Defendants in the State Henry together Holland and W. are read Tuscaloosa, City druggists in to retail they substantially both we consider that Tuscaloosa, County of State following. in substance the show Dr. B. public, including the resale operator owner King is the sole and of the Seven, Plaintiff, provisions that the Tyler, Texas, King Laboratories of and the appli- 199(1), are Section product known as Pedolatum is the obtaining in this cause for service cable product by King manufactured Laborator- defendants, process on both the product ies. Pedolatum is a for the re- are residents of State of defendants and moval of corns calluses and has been post last and that their known Texas approved by Drug Pure Food and Road, Tyler, address is office Jacksonville Department Administration of of Ed- Texas.” Welfare ucation and United States. contemplated At time that a one it the Sec- was had on Service n organization known as Pedo- distribution retary of Alabama of State of latum would be formed. How- Distributors copies the amended summons and and organization was ever that distribution complaint sent to were defendants any if such never formed and post registered mail office to the aforesaid Distributors, entity legal as Pedolatum receipts received address and return were solely by King, the same is owned Dr. B. Secretary of State back in the office party Lab- who is the sole owner of Alabama, properly signed the State oratories. by the defendants. appeared specially and Pedolatum large
The defendants
is not manufactured in
separately
their
amounts. Some three or four men have
filed
motions
attempted
times
service or
service
sold Pedolatum
the entire
aforesaid
complaint
ground
territory. Henry
on the
United States
their
summons
W.
mention-
sional sale
Pedolatum in the
Holland,
heretofore
who has been
pur-
men
nature
These
and manner stated above.
men.
one of these
ed is
outright
product Pedolatum
chased
point
think it well at this
refer
it at a
Laboratories
Henry
specifically
more
transporta-
profit.
King furnished
in-
W. Holland
because his
Pedolatum, made no
any
selling
man
tion to
troduced in
security
social
or
income tax deduction
Henry
emphasized by
petitioner.
Pedolatum,
selling
any man
deduction for
compen-
W. Holland testified
he was
compensation insur-
carried no workman’s
sated on a commission basis and that he
any
ance, health
accident insurance
any compensation
did not receive
whatever
covering
any kind whatsoever
insurance of
other than a
He also testified
commission.
Pedolatum,
pay
did not
selling
men
reference
the two or three
expense
travel
whatsoever
States
salesmen who
entirе United
Pedolatum,
selecting their
selling
these men
territory,
they
paid
as their
choos-
own methods or means of
paid.
same manner as he was
territory
entire
their own
out
*5
King Laboratories exer-
United States and
He further
testified that
awas
by
methods
cised no control over the
used
King covering
written contract with Dr.
these men.
relationship
the terms
with him
of
and
the other salesmen but that
not
it had
been
King Laboratories is a small
man
one
signed but
it was
agreement
also that
operation
with
three or
four
they operated
King.
under which
with Dr.
selling Pedolatum within the entire United
provided
partner-
The contract which
for a
States,
territory.
each in their
The
own
ship
King
between him and Dr.
and three
in
sales Alabama are
and occasional
casual
provided
partners,
“each
others
that
only.
except
King,
purchase
Dr.
said
shall
None of the
personal
defendants on whom service
from
deals
his own
funds and
attempted
was
any
price
maintain
office in Ala-
per
resell
at the
such deals
of
deal
$8
bama,
any
Alabama,
delivery
products
had
warehouse in
making
such
at
of
any property
Alabama,
any
owned'
in
and
had
such seller
time of such sale
shall then
place
personal
business whatsoever
in
his own
funds
retain as
the $4.00
* *
any
had
distributor,
A
agent
profit.
manufacturer’s
*.”
is described
deal
in
consisting
“proper
or similar
pack
connection in
contract as
Alabama.
jars
Pedolatum.”
16
and
The
Dr.
King
defendant
had been
a resident of the State
of Texas
further
that
King
He testified
Dr.
17i/^
years prior
to the time that his
their
not
from
commission
subtract
'the
was taken. What
in
few orders were sold
that
withholding
security
or social
tax
by
Alabama were sold either
one of the
govern-
required
paid to the
to be
Federal
three or four men
ment,
who came into Alabama
he had filed a United States
that
product,
during
took
period
orders for the
sent the
Tax
return
Income
Tyler, Texas, subject
accept-
orders tо
relationship
Dr.
he
his
with
had
ance
product
report any
there and the
was then
not
King,
sent
that he did
with-
by
buyer
security,
mail to the
into Alabama.
If
that he did not
holding
or social
purchaser
pay
employed by anyone,
product
being
wished to
for the
himself as
list
payment
by
a
retained
the sales-
been
with W-
that he had never
furnished
balance,
man
commission,
and the
statement,
less the
not
that he
covered
was
compensation
would be
King.
policy
remitted
insur-
to Dr.
of workman’s
was
particular
done
group policy
at
policy
no
or a
intervals. The de-
ance or
health,
fendants had
he
insurance,
whatever
that
connection
or life
accident
expenses by
paid any travelling
State
Alabama other than the
was not
occa-
expense of travel
to which
were acts of interstate commerce
King
Dr.
and that all the
applicable
of Alabama
laws
are
had in the sale
Pedolatum
he
ser-
further
whom
entirely
He
that each of the defendants on
borne
himself.
attempted
auto-
from state
entirely
vice
were immune
that he travelled
testified
particular
form
neither
mobile,
regulation
interference
and that
that there was no
any
defendant
connection
advertising
men who
make either
or four
State of Alabama sufficient to
that the three
subject
simply purchased
service of
Pedolatum
sold Pedolatum
prof-
199(1),
1955 Cumulative
then resold it at
Dr.
respondent
Pocket
it.
seriously
man-
further
insists that а writ of
further testified
Henry
Holland
W.
in this case
damus
not be issued
should
but this
in
own
traveled
his
automobile
he
adequate legal
since
has other
He testified
choice.
was his own
remedies.
automo-
required
have an
he was
while
I. Section
bile,
belonged
him
automobile
provides
all
are made
motions which
expense.
own
operated by
at his
him
any
writing
circuit
liability
was covered
The automobile
law, shall, upon ap-
proceeding
cause
nor the
but neither
insurance,
record,
peal
part
become a
and this
was named
one
King Laboratories
provides
ruling
further
statute
testi-
will be
noted
insureds.
part
the court thereon shall also be
not in
mony
to the automobile is
relative
and that the motion and
record
with the
accordance
*6
part
shall constitute a
thereon
record
partnership contract. Both
and the socalled
appeal.
proper on
and
testimony
of Dr.
the socalled
the
sales-
agreement show that the
partnership
7,
819,
pro-
Section
Title
1940
carry
automobile,
man,
to
used an
was
he
if
necessary
that where it becomes
vides
for
ex-
liability
at
salesman’s
insurance
the
nonsuit,
facts,
a
to suffer
the
and
of Dr.
pense. Both the
point,
may
or
ruling
decision
be reserved
was no
there
shows
Mr. Holland
appellate
by
decision of the
for the
court
partnership in existence
time.
exceptions
by appeal
bill
or
on the record
as in' other cases.
Emerson
plaintiff Mrs. Laura H.
The
petition
praying
court
her
filed
this
It is
this
well established in
state
ordering
of mandamus
writ
an alternative
petitioner
a
that before
is entitled to a writ
Warren,
C.
to
respondent, the Hon. W.
mandamus,
petitioner
must
show a
vacating
setting
and
aside
an order
enter
clear,
legal right
obvious
enforce
granted
by
made
him in which
order
he
which there
adequate
ment of
is no other
quash service
the defendants’ motions to
Poyner
Whiddon,
legal remedy.
234
v.
pend-
cause
proсess in the aforesaid
now
168,
Ala.
174
So.
Court of Tuscaloosa
ing in the Circuit
County,
to
hereto-
which we have
parte Hill,
365,
In Ex
165
51
Ala.
So.
a rule
fore referred.
court
786, this
held that
court
where
trial
nisi.
quash
court
a motion to
ser-
sustained
vice,
way
ruling
there was
to
no
review
respondent
It is
the insistence
and, therefore,
appeal,
by
mandamus was
is amenable to service of
neither defendant
remedy. However,
proper
pri-
this was
process
of an Alabama
out
court and
214,
7,
thе enactment
Title
to
transportation
delivery
out of
n of1940.
goods by
state
a nonresident
the state
party
to a local
on
parte
orders either taken in
Helveston,
In Ex
H.
267 Ala.
John
Texas,
Tyler,
through
94,
Alabama or
mail to
7, 8,
So.2d
reference
Hill,
by
this court
Since the
remedy
has no
parte
case
Ex
aforesaid
appeal,
adequate
she
no
at law
remedy
has
said:
granting
the action
review
court
supra,
trial
case,
Hill
“In the
motion to quash and therefore the
quаsh ser-
motion to
a
sustained
court
remedy
by
a
which she now
review
has
This Court
vice,
erroneous.
was
which
proceed
accordingly
mandamus.
shall
to review
way
no
held
review
mandamus.
by
case
mandamus
therefore
appeal and
214,
remedy. Section
proper
Neff,
Pennoyer
In the case
II.
v.
Code,
en-
7,
then been
had not
565,
principles
three
24 L.Ed.
U.S.
it,
principle
Under
acted.
required
the due
established
7, Code,
242, Title
per-
section
contained
(1)
a
14th amendment:
clause
reviewed
now be
may
ruling
if it is
sonal
void
rendered
judgment
That
judgment.
final
appeal has no
over
jurisdiction
court
used
argument
eliminate
seems
jurisdiction
court
(2)
defendant.
A
has
case.”
Hill
personal
judgment against
to render a
he
merely
nonresident defendant
because
parte
in Ex
principle
down
laid
Is
if
property
(3)
the forum
owns
within
applicable in the
Helveston, supra,
H.
John
has no
over a nonresi-
jurisdiction
In
so.
do
think
case? We
instant
acquire jurisdic-
defendant, it cannot
dent
Helveston, supra,
sought
it was
parte
Ex
merely
process upon him
by serving
tion
deny-
by the court
ruling
to review
by publication.
of the forum or
outside
petitioner to
service
a motion
Neff,
Pennoyer
supra, have
doctrines of
in a suit of law.
as defendant
on him
changed
the Su-
been
recent decisions of
held,
inferentially
that under §
preme
Court of the
ex-
United States
7, Code,
principle
contained
permissible scope
juris-
panding the
state
may
242, Title Code of
corрorations
foreign
over
and other
diction
appeal from the final
reviewed
now
nonresidents,
subjects foreign corpo-
judgment.
rations
others
suits within
state
*7
though
nonresident
cannot be
even
serv-
case the court
the instant
But
in
process personally within the
ed with
state.
motion to
service.
away
In order to show
trend
from
put
out of the
principles
Pennoyer
in
established
v.
parte
See
the court.
Ex
jurisdiction
Neff, supra,
refer to McGee
Inter-
62,
we
v.
Hartwell,
Ala.
federal
sovereignty
this
granting
Obviously the order
process.
comports
*
federal due
not
quash the service is
such a
motion
* *
in
Motor
support
As was said
Ford
an
judgment
in
as will
final
itself
Co., supra
Ala.
(226
Hall Auto
v.
appeal.
Co.
704
138,
Tyler Grocery Co.,
Ala.
drich v.
206
385,
603),
recognized
‘It
147 So.
289,
true
controlling
89 So.
and ascertainment of
facts
J.
factor when considered
business,
controlling
authorized
(2)
view
be
all the
in the case. As we
process must
evidence
agency on which
not
served,
process,
evidence shows
Pedolatum
of due
those
(3)
large
in
Some
com-
manufactured
amounts.
equal protection, and interstate
**
or four
have at
Pedo-
three
times sold
merce.
”
their
latum with the entire
States as
Unitеd
Boyd
in
Warren
may
v.
It
be noted
territory.
purchased
prod-
These men
Co., supra,
& Color
Paint
outright
King
uct
Lab-
Pedolatum
that case
in
factual
shown
situation
profit.
oratories
it at a
and sold
J.
forth
principles set
that under the
held
transportation
B.
furnished no
of Wash-
Co. v.
International
Shoe
Pedolatum,
man
travel-
selling
paid no
cor-
foreign
supra,
defendant, a
ington,
expenses
ling
sell-
of the men
whatever
qualified to do
poration not
business
Pedolatum. Dr.
state,
jurisdiction
was amenable to
any way
select the
choose
route or
also be
may
state.
of this
the courts
territory
these
which these men
covered
319,
Smith,
Ala.
parte
258
that in Ex
noted
men selected their own
and means
methods
795,
in refer-
792,
this court said
62 So.2d
product.
motorists
on nonresident
to service
ence
199,
7,
Cumulative Pocket
again
1955
(§
need not set out
all the facts
matters
Part,
1940),
“When those
shown
we have set
they
show
record in
cause
taken
appear
together,
forth abovе. But
in our
proceeding
sufficient
judgment,
the face of
the evidence
not show
does
per-
support a
on the defendant
by Dr.
service
control exercised
over
personally
against him as if
judgment
right
sonal
or the
these salesmen
reserved
court then
within the State.” This
them,
served
which he had over
control
on nonresident
equate
on to
service
necessary
went
to make them his serv-
199) with
on non-
service
(§
Tyler
Co.,
motorists
Grocery
Aldrich v.
ants.
206
(§
business in the state
199
who do
617;
residents
Ala.
17
So.
A.L.R.
Gen-
Cumulative Pocket
(1),
Corp.
Findlay,
eral
Exchange Ins.
1940).
Ala.
which have MERRILL, concur. JJ., GOODWYN and Neff, supra. This Pennoyer trines of Judge on Warren case submitted was COLEMAN, (dissenting). depo King B. and a Justice of Dr. a J. opinion It of H. Holland. is W. sition our holding I concur in the that that shows that this mo- which of the circuit court either in Alabama were selling Pеdolatum quash may by manda- tion reviewed purchased they had selling mus. there independent contractors and or were holding I that doing do concur King busi was not fore Dr. King was not It is defendant Dr. of Alabama. within the ness meaning in Alabama within the his business Holland testified that that true H. W. appears in 1955 Cumu- basis. statute which compensation commission as of the of 1940 lative Pocket Parts controlling factor. Al- not a But “Q. every jar words, In other that is there Reference of Title 7. 199(1) paid you took ? to be for A. Legislature: had Acts of the made to the right. page That’s 976; page 154; page “Q. paid And has for? A. been Yes, sir. the men who may that
It well be “pedolatum taking for engaged orders “Q. you any these Did deliver so King Dr. deals” were not servants of you charge where them a basis torts liable for their as to make him you any supply? —did deliver of that That respondeat superior. the doctrine of A. I believe I have. however, appears agents, such men were words, “Q. In other assume I am be drawn conclusion to to me the correct druggist retail in the state of depositions, particularly from the you- you reputa- think is a testified that —-whom Henry who W. Holland druggist, you ble sell me a dozen pedolatum. engaged he been jars, charged, sign and I want them I deposed Holland as follows: you the order blank and deliver kept “Q. of record What sort jars King dozen and then Dr. would you take products would me; way bill is that it worked? you? The number of doz- A. right, yes, A. That’s sir. ledger book, as ens was entered into a “Q. King get So that Dr. would to the number I took. paid supply you for the would have “Q. ledger book was that? Whose shipped, and which he had not but King’s ledger A. book. Dr. you carried into he get paid by your making would either “Q. book ledger Does he have that or him remitting cash sales possession? A. his He does paid being virtue of his in due course by charging druggist? the individual “Q. ledger what its book, Sir, paid A. I for the stocks that I general any name title? Did have had with me. applied to it? A. I don’t be- it does have lieve title. “Q. pаid you You stock that very simple thing, my name shows you? Yes, carried with A. sir. top page the number “Q. you get How would reimbursed pedolatums that I have taken from drug- given then for that were those and the number that I have gists charge and were ac- charged on a accounted for.
count? reimburse Would Dr. “Q. you with the ones then, What did do you give you credit for it? you did not account for —remit me; A. Dr. reimbursed King? ac- A. I give haven’t missed me credit for that.” counting any. always account for I *9 Dr. testified that the men thеm. pedolatum purchased him, but it from clearly shows that orders “Q. words, you In other if engaged were sent in the men in sell- them, you money turned the over to ing pur- charged against were King? Dr. right. That’s A. paid chaser King, who later to Dr. either “Q. you directly Did ever them through use one of the men who portions demonstrations, of them for The record collections. shows you pay where have drugstores bought didn’t for them? five Tuscalosa retail pedolatum year least one time in A. No. record, men sell- I read As 1958. agents authorized pedolatum and, within Alabama
sell 7, Code 199(1), Title meaning of the doctrine amended, and under 1940, as cases, King was later federal courts jurisdiction of
subject Paint & Boyd Warren v.
of Alabama. 687, 49 Co., So.2d 254 Ala.
Color
121 So.2d
Floyd RAINES A. Hope BAUCOM. Raines
Evalon Div. 538.
Supreme Alabama. Court of 30, 1960.
June Cornelius, Birmingham, ap-
Walter pellant.