*1 SIMPSON, specially. pur J., concurs taxpayer and each Even if that after definitely understood had chasers SIMPSON, special- (concurring is, transaction, that Justice of the completion ty)- from produced castings been had after the be moved patterns would patterns, in the conclusion on the basis I concur the state Alabama to in finding state it cannot out of the that this would purchaser, of the the evidence showed “the residence be said that transaction interstate taxpayer any sale an and the definite purchaser (cid:127)not make case. Trotwood in this understanding agreement pat facts under the Evatt, 51 N.E.2d St. definitely Ohio moved Trailers would be outside of terns par close cited case has last Mobile-Gulfport This 45. state.” Brunner v. 6 implications, legal allel, facts and both Lumber 188Ala. So. 438. True, in Trotwood at bar. the case product delivery case; actual Trailers Rehearing state, seller’s buyer in the given to manufacture, and it is, state LAWSON, Justice. residence of the moved to the state was then Appellant application filed rehear has there at bar case buyer. in the But ing wherein it is insisted that we should delivery accordance constructive was. with the clear this rather have rendered decree in court parties. of the intention than court. remand the cause to circuit case, we do not However, in instant We are in this insistence. accord with defi- show be said to can Woods, think Code State v. Title involved, nitely here patterns that as So.2d 732. It results any taxpayer had purchaser and the the decree of the trial court is and reversed agreement that understanding or definite will be decree here rendered for the definitely out- moved patterns would ap against amount of the assessment made True, Mr. Latshaw re- state. side of the pellee by Department of the Revenue pro- questions plied in: the affirmative State of Alabama. as to whether pounded counsel Judgment Application for re- corrected. beyond ultimately .patterns move hearing overruled. aBut careful of this state. the boundaries analysis replies to such of his reading and LIVINGSTON, J.,C. and BROWN affirma- clearly that his questions indicate SIMPSON, JJ., concur. course predicated on a reply was tive years dealings period over conduct purchasers not based and was with other taxpayer únderstanding between the any specific patterns of the purchasers "involved. here opinion that the evi We are So.2d trial was not court presented dence' presumption to overcome
sufficient
JOHNSON v. BATTLES.
assessment made
correctness
Reversed LIVINGSTON, JJ., con-
BROWN
cur. *3 McQueen McQueen & Mor- E. Jas. Tuscaloosa,
risette, appellant. all n Zeanah, Tuscaloosa, appel- Davis & lee. training-
accidents and High- other with the way Department, are able to form an as to an automobile .by as indicated skidmarks ? %
iji í|í Tucker, your opinion, skid- Mr. measured, marks saw there -type of Johnson driving, kind, on a of that going *4 hill, grade, going down down skid- seventy-two you marks feet indicate to traveling the car was at an Johnson speed? rate of excessive [*] [*] [*] [*] [*] [*] LAWSON, “Q. Tucker, your experience Mr. from Justice. you opinion can from form an skidmarks by Mrs. Mae Bat- brought This is a suit administratrix, highways you on such observed as tles, as the homicide under speed statute, 1940, scene this collision at what au- 123, 7, against an Title Code making tomobile those skidmarks was trav- Thomas for the Lawrence .unlaw- Johnson eling?” husband, George ful 'Bat- death of her tles. Assuming that one shown to anbe jury on case was to submitted expert may express an as' to the simple negligence, and charging count one automobile, predicat estimated an by plea general of' short issue in on the the tires “skidded” or ed ‘distance There in was consent the usual form. pavement, dragged along Jack jury plaintiff. Judgment verdict was for 469; 543, Vaughn, 204 son v. 86 Ala. So. -Defendant’s in accord-with the verdict. 544; 383, A.L.R. reversible A.L.R. for overruled and motion- new trial was appear error does not in connection with appealed he has to this court. the trial sustaining plain action in court’s appealed judgment from Reversal objections questions tiff’s to the héréto (1) sought three-grounds: on is fore set out. It is established that 'the well plaintiff’s sustaining trial court in erred inquiry competency as to of witness objection questions propounded to certain testify expert to as an is addressed to plaintiff’s by witness Tucker the defendant court, sound trial discretion of the whose n cross-examination; (2) on the refusal of decision on the evidence will not dis give general the' trial court to affirma- except appeal palpable turbed on abuse. charge hypothesis, requested tive Kirby Brooks, 507, Ala. So. defendant; by (3) failure of trial Perrine, Southern Bitulithic Co. v. .trial, grant to court a new on defendant 411, 601; Neyman v. Alabama Great against ground the verdict was Southern R. Ala. So. 435. great weight evidence. say We willing are not that it is made appear Highway clearly was-any 'cross-examination of that there Pa- abuse Tucker, part of discretion trolman who was called as a on wit- the trial court plaintiff, when only trial court sus- evidence as to the witness’ ness objections qualification testify expert plaintiff’s following tained as an was questions: -that he had been a High member' way years, Patrol for five and a half dur Tucker, you you said that ing investigated many which time he had up skidmarks back road measured from automobile accidents. feet, seventy-two intersection and I said been not investigating The defendant to the believe entitled affirmative, years. ground -for .five charge accidents From on there experience aqtomobile your investigating to. the sufficient provides Section Title Code plaintiff’s the death jury to showrthat “ * * * Any such part follows: received injuries from resulted intestate death, copy record a birth 'collision. in the automobile regis- state properly certified when an au- injured Plaintiff’s intestate was all prima trar, facie shall be occurred
tomobile collision places of the facts therein courts to Bir- highway leading Tuscaloosa from stated.” September afternoon of mingham on the Dodge automobile the 1937 when think that 'certificate passenger aas which intestate death, certified, duly when taken in con be- automobile owned collided with tending to with the evidence show nection in- Plaintiff’s ing defendant. driven prior condition of intestate 12, 1949, approxi- March testate died thereto, subsequent accident accident. mately after the six months prima make out show facie sufficient well and that intestate evidence shows intestate’s death resulted from in ing that prior that he was strong accident and juries accident received *5 the time of bed confined to his from the September on 1948. It which occurred The on- accident the date of his to death. to over duty then of defendant became the death ly showing intestate’s evidence by the presumption made come or rebut the auto- injury resulted received from Life Ins. American certificate of death. copy a cer- death mobile collision was a Williams, Co. v. by Registrar tificate certified the State cited. A.L.R. and cases of the Ala- the Bureau of Vital Statistics 11, 1948, which September the date on Health, which Department bama of Public based oc- the accident which this suit is on designated properly by the certified Kiz- curred, and Abram one Jack suf- (cid:127)bureau of death clerk. The certificate Battles, George ziah the were at home of ficiently plaintiff’s intestate shows that the Dail- requested Battles intestate. resulting from poisoning died from uremic automobile, drive ey, to who owned pelvis an automo- a fractured in received Dail- Martin. him to one the home of Jack accident. bile driv- ey told he feel like Battles that didn’t required be set This information is Dailey’s car they ing, but that could in the under out the of death certificate themof The three if Kizziah would drive.. provisions Code Title home, driving the left Battles’ provides: pertinent part said section car, seat on the front “ * (cid:127) * * be shall The medical certificate driver, of the the owner right of the and by physician, any, if signed made and back Dailey, riding seat. on Jack deceased, who last in attendance on Tuscaloosa-Birming- They reached the attendance, specify shall the time purposes, which, present ham alive, and deceased time he last saw the south, north and running will treat as we day oc- hour at which death of the northly direction proceeded in a and had the cause He shall further state curred. on that approximately a mile half death, the course of so as to show accident occurred. highway when the Jack sequence resulting of causes disease or they driving, Martin, home to whose death, name giving first the highway. lived west cause) (primary causing death disease point at a a short occurred collision The cause, any, contributory (secondary) road into which south of the distance ** 1* Causes each. the duration in a and drive wester- to turn ziah intended may the result of either which of death get Martin ly direction to home carefully de- violence shall be disease or defendant, violence, Johnson, at time fined; the means if from The stated, collision, proceeding in south- and whether injury shall be Tuscaloosa-Birming- accidental, erly or homicidal. direction on suicidal (probably) highway. ham oc- introduced in strongly the accident tends to testimony as to how The support sharp conflict. version as to the loca- is in curred Johnson’s tion of Kizziah’s car at the time of the for the testified only who witness impact. col- manner which the plaintiff as to the A Sigler, Mr. and Mrs. who were travel- the auto- the driver of occurred lision ing Birmingham toward on the afternoon of According to his testi- mobile, Kizziah. the collision and who were in the stopped the automobile on second mony, he by car car behind the driven highway and held out sub- eastern side testimony stantiated his a turn several making material preparatory hand his left respects. Mar- led to home of road into proceeding southerly tin; that a car foregoing complete is not a state- western side of from the turned direction ment of the introduced in the proceeded front of him highway in case, but think we it will suffice for the the east side of the shoulder on down appeal. purposes of this shortly thereafter highway; was, course, The burden by defendant followed the car driven prove plaintiff negligence car it first until reached the path of the proximate defendant was a cause of the Kizziah was point car where the injuries her clear are intestate. We located, right driving side relating conclusion that car hit side of Johnson’s driven the automobile across propelled it driven Kizziah and defendant, prevailing condi *6 under the highway, west- stopped it on the where ditions, justify by was finding sufficientto a thereof, car ern side with the Johnson jury negligence that of the de ultimately stop coming a on the eastern to proximate fendant awas of in cause Kizziah, According to highway. side of jury. defendant, Johnson, at the time speed But traveling collision was estimated counsel for defendant strenu a ously argues seventy-five plaintiff to be miles that seventy between nevertheless was not place an oc- entitled to a verdict of the de hour. The the collision because where contributory was fense of negligence. curred 250 and 300 feet below As to between defense, heavy, course, up this the crest of a hill. was The traffic was burden day dry. prove clear and the on the road defendant to it. defendant, Johnson, that he testified riding Plaintiff’s a intestate was as over came the crest of the hill at a passenger by in the Kiz automobile driven approximately fifty hour; miles that the an generally ziah. It recognized is rule car by pulled driven Kizziah out from be- person a riding that an automobile driv large hind a truck and turned from the another, by though en even chargeable not highway eastern side of the toward the with negligence, the driver’s ab is not western if side as onto the side road all safety, solved from care his own but him; directly and turned in front of that duty is under the to exercise reasonable or put he on his brakes as soon he saw ordinary is, care to injury; avoid that such by car driven Kizziah begin to turn and that ordinarily care as prudent person would his brakes “screeched” and skidmarks were exercise under like circumstances. McDer left a approximately ninety-two distance of Sibert, 670, mott v. 218 Ala. So. 681. 119 Johnson, feet. According right-hand There is no evidence this case which fender of his car hit center support finding plaintiff’s a right side of car by driven Kizziah and guilty intestate was himself negligence. knocked it by over on is- the western It not so side of the contended ap counsel for highway pellant. and that is, that John- car, finally son’s came to rest some distance however, contended, It Kizziah, is that point south of the of collision on the east- driver automobile in which in- ern side of highway. picture A passenger, guil- of the testate was a by proximately driven Kizziah ty negligence which was which caused
630 n with the as- agree therefore, We are plaintiff -that; inclined .injuries' to:, appellant by that made counsel sertion . recover-.. is not entitled weight shows evidence great any, if negligence, Kizziah’s But proceed- by Kizziah had that tire driven car by plaintiff unless a, recovery could not bar ed from the eastern side plaintiff’s imputable to was’ negligence toward, partly side -the and was western commonplace the law It is a intestate: highway at the the western.side in an automobile passenger ordinarily impact. it be as- But even time of the if another, he has- no whom over driven part act sumed su-ch fact, without control, not; that state of oil is negligent, it does not follow negli contributory more, chargeable plaintiff not to recover under entitled . R. Co. Francisco v. Louis-San gence St. case, any negli- in this since 27; 464, So. Bir Norwood, 133 222 Ala. imputed gence of Kizziah cannot be Turner, 241 Ala. Electric Co. v. mingham plaintiff’s intestate. Cruit, 299; 238 v. Ala. 66, 1 Moore So.2d We have heretofore indicated that 252; Louisville & 414, So. v. 191 Roberts in this case was sufficient 457; 186 Co., Ala. So. 267, R. 237 N. jury support finding Fonville, 218 Morgan Paving Hill v. Co. guilty negligence defendant was 120, 610; 566, Id., 222 Ala. Ala. So. 119 proximately injury intestate. caused So. 807; Id., 140 Ala. So. negligence any, If the Berry, 223 575; v. Contracting Co. Newell imputable intestate, neg and the Davis, Ala. 134 So. Strickland ligence concurring of the defendant were So. Ala. 233. proximate injury, plaintiff causes of con- support The cases above cited- was entitled to recover. Roberts v. Louis presented on this -evidence clusion that the N. &ville R. So. Ala. joint appeal adventure makes no case supra, Cruit, Moore v. joint enterprise operation of it it' was said: “Nor is an oc- in which intestate *7 plaintiff’s recovery essential for. neg that cupant. . .' . ligence of defendant’s as driver be shown proximate th'6 injuries. sole cause of his occupant is' a The fact that 'is negligence, sufficient that his concur request af If passenger at-his own does'not causes, ring with one or efficient more other Minneapolis his Faltico v. fect status. plaintiff’s proximate than is the 88, fault, N.W. Ry. 268 Street nn. 198 Mi Cox, cause. Chambers 222 v. Ala. C.J.S., page Negligence, 823. § So. 416.” Keystone Co., 132 In v. Keller Furniture hold, therefore, Pa.Super. 547, held in it was- that A.2d trial court did not err passen refusing the affirmative that the mere that effect fact requested by as charge defendant ger’s husband’ the-vehicle that owned overruling motion for new trial was--driving operator at the owner’s on ground -contrary that the verdict is operator request does not make the great weight of the evidence. guest’s guest 'the or establish the agent 'of judgment is affirmed. the -control of the vehicle. to share Affirmed. well established that The rule is imputation neg to create the in order BROWN, STAKELY, FOSTER JJ., ’ passenger, driver ligence (cid:127) concur. passenger have assumed control and must- Rehearing. or vehicle some must have direction control, original opinion management In our pass a voice we right to did ’question C.J.S., on Neg the vehicle. 65 whether direction Of evidence (cid:127) 822-825; .168, pages matter law Kizziah, Crescent shows ligence, aas § Stone, plaintiff’s car the driver Motor Co. at the-time of his intestáté in- proxi- guilty negligence which Martins’ I would jury, if said Jack Jack injury. drive, A mately sleepy to intestate’s he he didn’t contributed said was feel unnecessary question driving, like we started over there. decision effect that holding to the of our in view Yes, “Q. Over Mr. Martin’s? A. show, a matter of did not sir. Kizziah, any, law, negligence of “On cross examination the witness imputed to intestate. could be ziah testified as follows: support appli- here in filed In briefs you going to were “Q. business What appellant, rehearing, for counsel cation Battles was A. Mr. Mr. Martin’s on? below, earnestly insist that defendant Martin. to see Mr. going dispute shows without in this case Dailey “Q. asked Mr. Now, Mr. Battles agent intestate and Kizziah was the in his go Mr. Martin’s him to let therefore, chargeable that, intestate was right. Dailey’s A. That’s car? it is negligence of told him that he was “Q. And dispute. appears without insisted right. sleepy? A. That’s that where established It is well you could ride him over “Q. And that agent or master principal and a relation of right. there ? A. That’s driver and between the exists and servant ' automobile, negli occupant “Q. an Battles you driving Mr. And is im Dailey’s servant agent request or the car gence of the Battles’ in Mr. at Mr. and will principal or master putable collision? Mr. the time Martin’s per recovery against a third prevent Yes, A. sir. Greyhound v. Southeastern son. Brown Yes, happened? “Q. A. That’s what 499; Lines,1 51 So.2d Am.Jur. sir.” pages 161-162, C.J.S., Negligence, §§ of the owner of 804, 805. appellant’s is as fol- as set forth in brief the evidence not think But dowe lows : as a record shows appears in this as it “Q. any arrange- Mr. Battles make Did agent of Kizziah was of law matter operation ment with as to intestate, Battles. Yes>, sir, car? A. he me to take asked summarized original we In the up him there. explain they Battles’ tended the facts him to take asked by Kizziah. in the car driven presence him up where? A. Take towards'Bucks- appellant, setwe *8 to counsel deference ville. brief, given in the evidence out below “Q. What did I tell him? A. told a matter of shows as it is contended driving. him I didn’t feel like principal and relationship of law that “Q. say in- Kizziah and What did Battles ? A. He agent between- existed brief, appellant’s get Abram Kizziah to quote from said he’d drive the testate. We course, conclusions of counsel car and he asked me if it would be all omitting, of rulings on ob- I told him it and would. from the evidence drawn j ections: “Q. proceed- Abram And then Kizziah up the car convenience, sup- ed to drive the road and that’s
“For happened? Yes, quoted from the when the collision A. contention is port of this examina- Sir.” On direct as follows: record Kizziah was asked the
tion the .witness accident, At the time as shown in following made following questions opinion, original was driving replies. car, Battles was on the front seat with Kizziah, Dailey going, Mr. was on Where back. Dailey asleep Well, going- at the time of we the acci- ziah? A. —he Dailey dent. to take him over get going to Jack 1. Ante, p. 308. on the the car operation of in the to ziah settled is too well The rule And unless agent. was his Dailey, theory that he authority that of require citation right to control Battles had Battles car, invited had owner can then, course, negligence Kizziah’s of could Dailey’s negligence trip, that un imputed him. think be We not rule And Battles. imputed to
not be jury could have found der the evidence the driv been Dailey had the same if be would Dailey, agent of that Kizziah was the asked had car, Battles although ing the negligence of Kizziah event v. trip. Robinson him on him to take imputable Mc to Battles. In would not v. Faltico A. Leonard, 100 Vt. Leonard, 134 A. v. 99 Vt. 88, Andrews Co., Minn. Ry. Minneapolis Street 710, 715, negligence it “The was said: trip fact that N.W. imputable plain the driver was not to the would of Battles benefit the sole taken for tiff. had no of the car nor She control we In connection this change the rule. not management. its relation master Caslov, Pa. quote from Mork et ux. servant, principal agent, or or 904: 192 A. being engaged prosecution in the joint argues hand, plaintiff the other “On purpose, common did not exist between that of car was status that her driving them. on the occasion in trip was passenger; that while guest question, the defendant agent was the re- at her her benefit and undertaken Franzoni, owner, Attilio its at re whose car, nor quest, she no control quest it, he was driving and he will be held in its her sister to direct did she assume degree responsibil same of care and not, mat- operation; did that the sister ity plaintiff principal that his agent or law, her servant ter of become have been personally had he operating been plaintiff merely she extended because the car and the happened same accident conveyance. accommodation of a respects in other under the same circum status “It is well settled stances.” depend not does occupant of an carefully We have examined the cases served purpose to be upon fact that the appellant cited counsel for hi brief. trip benefit, is or even any do not think point of them are in be- request. In other or at his instance made cause the factual situations are in no wise servant, words, master and the relation of analogous presented to that in this record. agent arise in principal does Application for rehearing overruled. fact solely from the of this character cases transported occupant the car is LIVINGSTON, J.,C. and FOSTER and some request, or in connection STAKELY, JJ., * * concur. interest, affecting his own matter Although the owner of the accident, driving at the was not time driver of the car be said that the
it cannot
merely
because
agent
became
*9
trip
taken
Battles’ benefit
alone.
testimony
said
his
direct
So.2d
On cross-exam-
Dailey
drive.
him to
asked
request
came from
he indicated
ination
THOMAS
STATE.
Dailey’s
Battles.