Hall v. Dexter Gas Company
170 So. 2d 796
Ala.
1964
Check Treatment

*1 opinion. The Town pointed out in our imposed language has clear Hackleburg question. tax in privilege license application for

Opinion extended

rehearing overruled. J.,

LIVINGSTON, C. and SIMPSON MERRILL, JJ., concur. So.2d Jr., HALL,

Fred COMPANY, Inc., et al.

DEXTER GAS

3 Div. 39.

Supreme of Alabama. Court

Sept. 1964.

Rehearing Denied Jan. *2 Reese, Jr., Montgomery,

Warren S. appellant.

Rushton, Stakely Johnston, Mont- & appellees. gomery, for here was Submission on motion to dis- appeal miss the and on the merits. Appeal Motion Dismiss *3 grounds One of the of the mo point tion “the to dismiss takes the that transcript does not contain a certificate appellant appellees has served or their attorneys copy assignment with a of alleged errors.” It is not in the motion to assignments dismiss that the error were of actually upon served counsel for upon movants or movants. The brief filed below, appellant, plaintiff on behalf of apparently duly which on coun was served movant, copy appellee, sel for contains a assignments of The certificate of error. 1, provided Supreme Rule Code for Court 1940, 7, Appendix, jurisdic is not Bice, 273, Edge tional. v. 263 Ala. 82 So. 252; 580, 126 Craig, 2d Land v. 271 Ala. So.2d 221. Under the circumstances of this case, we do not think the absence of the LAWSON, Justice. should a certificate work dismissal of the Circuit brought was This suit appeal. Edge Bice, supra; v. Land v. ' County by Fred Montgomery of Court Craig, supra. Board Education of Cf. of Company, Hall, Gas Jr., against Dexter Mitchell, 594, County Colbert v. 270 Ala. Inc., Inc., Dexter Service 103; Department 121 Industrial So.2d of injuries al- personal damages 525, for Simms, Ala.App. recover Relations v. 104 39 a by Hall as sustained leged to have been 782, copies assignments So.2d where the defendants’ negligence of appellees result of of error not served on were employees servants, agents or holdings in cases their counsel. The those premises. on Hall’s gas tank on the mere absence of the were not based of certificate service. complaint After their demurrer to the overruled, pleaded gen- the defendants ground the motion to The other in short in the usual eral issue consent point appellant’s brief dismiss takes the form. Supreme requirements does not meet the 9, prescribes which the form and Court Rule trial conclusion of evidence At the by ap contents of briefs filed this court instruction gave an affirmative court pellants. filed here on be While the brief Com- defendant Gas favor appellant might strictly con half of the duly re- company had pany, which in all re form to the aforementioned rule writing. quested spects, feel that the omissions we do not inus from or defects in the brief warrant in favor jury returned a verdict later The Cochran, 252 v. disregarding it.—Simmons defendant, Dexter Service other 579; v. City of Boaz 41 Ala. So.2d verdict. Company. Judgment followed 192; Barrett Kelley, 266 Ala. 99 So.2d for a new Hall, a motion filed plaintiff, The Hanks, 275 Ala. 155 So.2d ap- plaintiff has The denied. It was trial. is denied. motion to dismiss court. pealed to this

303 cause, except lenged any bias or in- for the Merits particular terest as to the case.” appellant asserts that the trial Garrison, Rosenbush Feed Co. v. requiring erred in him to strike court So.2d we Ala. observed that the only twenty-three jury containing list parties required in civil cannot case be following The record contains the names. which, from a list not contain strike does entry: jurors. twenty-four.competent the names of Milan, To like effect see Southern R. Co. v. Reporter, let “THE COURT: Mr. 711; Mc- Ala. Morris v. 199 So. Record when the case show that Clellan, 155; Woody v. ready trial turned out that *4 Chandler, 238, Ala.App. 66 So.2d 463. only twenty-three jurors there were Ry. Ralph, In Birmingham Union St. Co. v. plaintiff in Court and counsel for the 273, 222, 92 Ala. 9 So. we said: twenty-four insisted that there be Wherepon, “ jurors. de- counsel for the * * * right to jury, a struck eleven fendant said there would be upon party, the demand of either is they give strikes left would and that clearly by secured If statute. there plaintiff they the six strikes and would should abe less number in attendance being five and the Court take 24, duty than it is the of the court to opinion juror there was another if. complete the list of competent and be, only the other strike there would qualified 24, persons proc to before the six, getting and and would be he is six ess rejection striking off should the motion to summons another City] commence. Railroad [Kansas denied, juror plaintiff duly and the Smith, Co. v. Rep. [p.] South [Vol.] legally excepts and thereto.” (This reported case is in 90 Ala. 25, but no facts stated are to show the 30, Section reads: Code application principle. These are stated in the Southern Reporter.) Or jury, by “In all civil actions triable if there attendance, should be 24 in and party jury, either demand a struck from any cause the number is reduced thereupon by and must be furnished the to less than panel the should be twenty-four jurors clerk with a list of up filled jury to from which list the upon court, in attendance the from should jurors be struck. If regular the jury which a must the be obtained upon attendance the court should ex parties attorneys alternately or their panel ceed the of 24 should be striking one from the list until twelve completed regular jurors. from the off, party demanding are stricken the * * *” (92 Ala. 222) jury provided, commencing; the judicial True, having in all circuits more the pointed out, not as trial court the require judges, strikes, than two the court shall had the same number six, jurors to be made lists the two of all he would have had if the list had court, upon twenty-four attendance who are contained twenty- rather than competent case, try to and en- three names. twenty-fourth pro- But the case, gaged in spective juror the trial of might some other changed have the en- which list shall in no event tire striking, resulting contain course of in an en- twenty-four jurors, tirely less than jury. different trial apply We cannot jury which a must be obtained here injury the doctrine of error without parties alternately attorneys thereby or their completely ignore the manda- statute; striking only tory provisions one from the list until The situa- list, party twelve remain de- is-entirely tion here pre- different from that manding jury commencing; and Garrison, sented in Rosenbush Feed Co. v. jury supra, thus obtained must not be chal- where we held that the record af-

firmatively injury showed that there was no expert knowledge in that line of business jurors appellee implies duty and the list of from which to have such knowledge jury names obligation was obtained contained the and the to act in light twenty-four competent jurors. knowledge. of more than such In matters involving the safety life, The Rosenbush case was tried the Sixth of human vigil such care and County was ance Circuit. Tuscaloosa must regard be exercised as a due Judicial the time, only county in that circuit. At the the sacredness of human life demands. the Sixth Circuit did have Alabama Utilities Service Co. v. Ham Judicial monds, judges. more than two circuit 144 So. 822. appellant complains of the action of testimony When the is viewed in giving the trial court the affirmative light appel most favorable hypothesis charge without in favor of the lant, plaintiff below, as must be when defendant Dexter Gas Inc. we review the action of a trial court giving an affirmative instruction favor to be Dexter Gas seems defendant, opinion of a we are of the engaged selling, distribut the business of question jury presented that a as to ing, storing transporting employee Company’s whether Dexter Gas petroleum gas propane, called which is ad *5 negligently duty breached the which Dex mittedly commodity. dangerous a While plaintiff ter Gas owed the below perhaps public is utility not a as that term injuries proximately which caused the as defined in Title Code § plaintiff Hence, which we hold suffered. General, Attorney (Report amended of in giving the trial court erred the April-June p. 79), Dexter Gas Com hypothesis in charge affirmative without pany subject provisions is the to the of Company. favor of Dexter Gas Liquified Alabama Act.— Petroleum Gas approved July Act 1951, Acts of light The evidence viewed in the most Alabama, 1951, p. 559. That act is carried plaintiff favorable to is as hereafter sum- supplement in the to the Code of 1940 as marized. seq. 179(57) et § 20, 1961, morning January the of dangerous dealing Those with com by plaintiff’s call was made wife to Howard liquified petroleum gas such modities Gardner, K. vice-president general and degree must use a of care commensurate manager of where- Dexter Gas dangers involved. request filling the was made for the of response propane gas Halls’ In tank. to Company is Although Dexter Gas Norris, that call L. an em- one Clarence public utility, legislature not a the this of ployee Company, was dis- of Dexter Gas pro state recognized dangerous has the patched where he to the Hall residence pensities liquified petroleum by gas of the proceeded propane gas to fill the tank. 275, supra. enactment of Act The under propane through gas The entered the tank supplier liquified petroleum taking of a hose on the truck which was connected gas product to furnish its the tanks of to with filler the tank. It took the valve on degree its customers calls for the same of complete his Norris an hour to almost required public care generally of utilities required assignment, usually although it public. in their service to the only twenty fifteen minutes to about to engaged fill the was While Norris tank. degree Hall, plain- filling We have said that this of Mrs. of the tank wife, care be degree defined to be the “banging” same tiff’s heard a noise. Just of vigilance persons care leaving premises, and which Norris of before the Halls’ prudence skill and observe under like con told Hall that he had trouble Mrs. delay. Dealing requiring tank, ditions. with matters the hence the The evidence advised Mrs. time that the truck started and Norris the the not show that does stops unsafe. number of the goes miles he and Hall that the tank was doing he makes and at what he the away from home while plaintiff was stop stays place and in that long how he filled, but he being arrived the tank was up when he the run and starts next minutes thereafter. at his house a few operates speed during the which he purpose for the of He went to the tank day and the when he comes the total Plaintiff raised the checking gauges. the day stops miles for number the and the of He the filler valve. hood which covered According he made and so forth.” to as he raised the testified that as soon tachograph Gardner him the chart enables my face.” It came from “gas got hood exactly know truck to what driver or his plaintiff pain- was the filler That valve. doing service man is “minute minute fully injured dis- seriously is without during day.” the pute. objection interposed to intro- it, as we view Under the evidence duction tachograph disc record or jury could that Dexter Gas have found that, properly chart was “It is verified not Norris, Company’s failed to seat employee, or authenticated.” We do think that prevent the filler as to valve so objection well taken. testified that Gardner tank, petroleum escaping gas from the kept record or chart was ordi- notify And or to of such failure. Halls nary part course his as a of business duty such his we think it clear that general supervision. records under dangerous view testimony, view Gardner’s the introduc- commodity character which had been tachograph tion evidence of the record pumped plaintiff’s into tank. objection subject chart *6 interposed. 7, Code 1940. §— opinion We are that the trial of the argued The other assignments of error given court could without error have rulings relate to on the admission and ex- general charge in affirmative favor of which, clusion prob- of evidence in all Company, the defendant Dexter Service ability, and, will not occur on another trial Inc., apparently charge but no such hence, need not be treated here. requested. not a scintilla of There is evi- servant, tending any dence to show that indicated, For the judgment errors agent employee or Dexter Service Com- trial court is reversed and the cause pany any filling had connection with the is remanded. plaintiff’s propane gas tank. The transcript completely of the evidence is Reversed and remanded. n devoidof any reference to Dexter Service Company.

LIVINGSTON, J.,C. and GOODWYN COLEMAN, JJ., concur. The defendants introduced into tachograph evidence a so-called disc rec Rehearing testimony ord or chart. The does not clearly tachograph disclose what is or

exactly As how it we understand works. LAWSON, Justice. testimony Gardner, K. of Howard vice-president opinion original general manager our deliverance of Dex on tachograph by way ter Gas dictum Dex- is similar we said that of obiter put place Company to a in a in en- clock. It is truck ter Service have been would n ofa speedometer. continuously. charge if general runs A to the It titled affirmative placed requested, in charge disc or chart is such a had in connected with been tachograph so a scintilla of instrument that it “tells record contained not even servant, any tending 170 So.2d 802 evidence to show that any employee company agent or of that had Artemus TRAYWICK plaintiff’s connection v. propane gas tank. TRANSCONTINENTAL GAS PIPE ap- Because of that statement counsel LINE CORPORATION. modify pellees that we should our now insist Div. 790. affect the judgment of reversal as not to so judgment trial court favor of Supreme Court of Alabama. appellee Company. Our Dexter Service Jan. opinion original deliverance is not questioned in a re- far as results so judgment the trial court

versal of the Company. appellee Dexter Gas

favor of a decision have said when

We appellee is not affected a case as to one other, joint to the d'ecision as appel one

judgment be reversed as to judgment as to disturbing

lee without Co., Iron Young other. Woodward 223; Zemczonek v.

McElroy, 264 Ala. 86 So.2d 824. the rec

But have reexamined we to ob

ord this case and are constrained saying wrong

serve that we were

there no evidence to connect

Service with the transaction out injury.

of which Hall sustained slip in

We overlooked a sales which was

troduced in evidence the defendants be propane

low, appellees, which shows that

gas Dexter Serv sold to 20, 1961, day Company January

ice on complaint alleged which Hall injury. sustained the This is at least a

he

scintilla of evidence which connects Company plain

Service day injury gas

tiff’s tank on the al Hence,

leged to have the trial occurred.

court would not have committed error

refusing an affirmative instruction in favor

of Dexter Service if such a re

quest been had made.

Opinion application re- extended and

hearing overruled.

' LIVINGSTON, J., and C. GOODWYN COLEMAN, JJ., concur.