21 So. 2d 683 | Ala. | 1945
This is a homicide case against the servant and the master.
The submission to the jury was on three counts as to defendant J. T. Bullard, and as to appellants McGowin, Garrett and their company on one count. The material averments of count 1 will be set out in the statement of facts. There was a joint verdict against the defendants from which the appeal is taken. There was a severance as to appellants.
Counsel for appellant driver, Bullard, assert that if there is error in the record entitling either of the appellants to a reversal, it must work in favor of all defendants, and that the judgment appealed from should be reversed. It is further urged that there could be no judgment against the master without a judgment against the agent charged with misfeasance or malfeasance, resulting in the damage and injury for which suit is brought. Walker v. St. Louis-San Francisco R. Co.,
A later decision touching the subject is Griffin v. Bozeman,
"Liability of two or more persons jointly engaging in commission of trespass is *556 joint and several, and suits against such persons separately can be prosecuted to judgment, with but one satisfaction.
"If joint liability results because one person is responsible for wrong done by another person under rule of respondeat superior, and not from joint participation in wrongful act, suit can be joint or several, and judgment exonerating servant will relieve the master.
"Judgment favorable to master sued for trespass will not exonerate servant where court has found that master-servant relation did not exist, or that master did not actively participate in trespass, or that no trespass was committed."
The case will be considered as to the respective liability of the defendant-master on the one hand, and that of J. T. Bullard, the driver of the master's truck, on the other hand, under the pleadings, on which the trial was had, and the evidence that obtained. At the time of the accident there was no relation of master and servant existing, within the rule of respondeat superior, and no joint participation in the wrongful act declared upon by the McGowins, Garrett, or their lumber company, holding them responsible for Bullard's actionable wrong declared upon in counts 2 and 3. The relations of the several appellants declared upon in count 1 will be further considered herein.
The insistence of appellee is that appellant McGowin Lumber Company, knowingly entrusted a motor vehicle into the hands of an incompetent driver, appellant Bullard, and this caused the injury for which suit was prosecuted. The rule of good pleading is adverted to in McKinnon v. Polk,
In the argument and brief in the case at bar, Crim v. Louisville N. R. Co.,
In Alabama City, G. A. R. Co., v. Bessiere,
The Bessiere case, supra, is cited in Crotwell v. Cowan,
One of the earlier cases in this jurisdiction, Parker v. Wilson,
The case of Gardiner v. Solomon,
The foregoing outlines the course of our decisions touching the legal liability growing out of handling dangerous instrumentalities with the knowledge and consent of the owner.
Counsel for appellant does not question the soundness of our decisions in cases where liability attached because of the owner knowingly entrusting a motor vehicle to an inexperienced or incompetent driver and injury resulted to property or innocent third persons. In oral argument and in brief appellant's counsel asserted that the case made in count 1 was not that of principal and agent or master and servant or letting an automobile for hire or for use gratis, but that of bailment. It is urged that under the evidence and pleading on the one hand by the owner, Bullard had possession of the motor truck for a specific purpose, with instructions to park the truck in his yard over the week-end and after his duty with the truck ended; but that, on the other hand, instead of obeying instructions, he violated his trust by using the truck for his own private, personal use; and while so violating his trust, he violated the law, by driving the truck while intoxicated, causing the tragedy for which suit is brought. It is insisted by appellee, however, that Bullard was not only entrusted with the truck for appellant-defendant's business, but also for Bullard's own personal pleasure and entertainment.
Code 1940, Tit. 36, § 97 provides: "Whoever lets a motor vehicle to any person to operate upon any public highway or street, knowing that such person is in an intoxicated condition, or under the influence of drugs, shall, upon conviction, be guilty of a misdemeanor and shall be subject to imprisonment in the county jail for a period of not less than thirty days, nor more than twelve months, or shall be fined not less than twenty-five dollars, nor more than one hundred dollars, or shall be both fined and imprisoned." Said section makes it a misdemeanor to "let" a motor vehicle be driven upon the public highways knowing that a person so driving is in a drunken or intoxicated condition. As such the vehicle becomes a dangerous instrument in the hands of a drunken driver. The same fact is recognized by Section 2, Tit. 36, Code 1940.
We are brought to a decision, under the evidence, of the question of fact: Did Bullard have the use of appellant's truck on this fatal occasion, with the knowledge and consent of the owner thereof, not only for the transaction of the owner's business, but also for his own personal pleasure and entertainment and while so engaged about his own entertainment cause the homicide in question?
Parties before the court have a right to make the issues of fact to be decided as they believe material. Some statements were made in argument that said averment may well have been omitted by the pleader or be regarded in this court as surplusage. But the question recurs: Is said allegation in the pleading proven by any testimony in the record? If not, the relation alleged in the complaint is not proven.
The complaint cannot be supported by an inference or an inference. Equitable Life Assurance Society v. Welch,
The substance of the testimony on cross-examination of the witness Champion was that he went with Mr. Ed Probst hunting Mr. Bullard one night; that they had a report (it is not stated from whom) that Bullard had one of McGowin's trucks and had gone with it; that they went to Bullard's house, and found him at home.
This testimony does not show knowledge on the part of the lumber company, or either of its owners, that Bullard had been using the truck after hours of service had ended for his own personal *558 pleasure and entertainment. This being a material averment of count 1, in the absence of testimony proving the same, the affirmative charge should have been given, as requested by defendant McGowin.
Upon consideration of the cause, the conclusion has been reached that, under all the circumstances, the ends of justice would be best subserved by a reversal of the judgment in its entirety. City of Tuscaloosa v. Fair,
It results, therefore, that the application for rehearing filed by the appellee be and the same is hereby overruled, and that the application for rehearing filed by the appellant, J. T. Bullard, be and the same is hereby granted; and that the judgment of affirmance heretofore rendered in this cause against J. T. Bullard be set aside and vacated, and the judgment of the circuit court be and the same is hereby reversed in its entirety, and the cause remanded to the circuit court for further proceedings therein.
Reversed and remanded.
GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.