Barfield v. Evans , 187 Ala. 579 ( 1914 )

SAYRE, J.

Great stress is laid in argument upon the action of the trial court in overruling demurrers to •counts 2 and A. '

Counts 2 alleges that: “Defendant was running and •operating an automobile upon the streets of Birmingham * * * when the same ran upon and against plaintiff’s intestate, a pedestrian, who was crossing Eighth avenue. * * * And plaintiff avers that his said intestate’s injuries and death were proximately caused by reason of and as a direct consequence of the negligence of Ralph Condray, the defendant’s servant •or agent, while acting within the line and scope of his ■employment as such.”

We think the only plausible objection taken in argument against this count may be thus formulated: While it shows that “defendant” was operating the car, and so that “defendant” owed a duty to plaintiff’s intestate in his situation, it shows negligence on the part of Condray only, of whom no duty in the permises is categorically predicated, because it is not unequivocally alleged that he was engaged in the manual operation of the car, and thus fails to show that the act complained of was a breach of duty on the part of the person who did it. While the count leaves it to be inferred that defendant was operating the car by her agent Condray, or that Condray was operating the car for' defendant, and thus it appears that the averments of act and duty are not correlated with that technical accuracy and certainty which the rules of good pleading may require, still the count did not fail to state a cause of action, for the inference is reasonably clear, though not inevitable, that plaintiff was injured by the negligence of defendant’s servant Condray in the manual operation of the car, so satisfactory altogether as to put upon defendant the burden of answering by demurrer in which the defect should have been “distinctly stated,” as the statute reqiúres (Code, § 5340), and the objection cannot be taken for the first time on appeal. The demurrer, if intended to reach this point, was too general in its language, and for this reason, if none other, was properly overruled.

Count A has been held good in Barbour v. Shebor, 177 Ala. 304, 58 South. 276. We do not see, however, that the decision in that case is conclusive of the question here raised by the argument made against count 2 and repeated as against count A, for the opinion there indicates that the court was answering only the argument that the complaint was too general in its averment of the immediate act of negligence charged. As for that question, Barbour v. Shebor, supra, and the cases there cited are in point and sustain the trial court’s ruling on the demurrers to all the counts in this case. As for the ground now urged in argument against counts 2 and A especially, and stated above in our discussion of the demurrer to count 2, we prefer to rest our ruling upon what is there said.

Numerous exceptions were reserved on the admission of evidence. Plaintiffs intestate had been swept away and almost instanly killed by an automobile just after he stepped from a street car. Condray was in charge of the automobile, was driving it at great speed, and there is no room for doubting that his reckless negligence was responsible for the disaster. The main, indeed the only question of dispute was whether Condray was acting at the time as the servant of defendant, and this depended entirely upon the question whether defendant was at the time engaged in the common carriage of passengers for hire and used the machine in that business. Appellant (defendant) was not in the automobile, nor was there any evidence going to show that she knew the machine was in use at the time or had any interest in its immediate use, unless she was engaged in the business of carrying passengers. She had owned the machine at one time, but she brought evidence tending to show that some time before the occasion in question she had disposed of it to one Jones, who operated a public line of .automobiles or taxicabs for the common carriage of passengers, and that she had at the time no interest in, or control of, the machine. She also con-, tended that, however that issue might be solved, the evidence did not warrant a verdict against her for that it failed to exclude the idea that the machine was at the time being operated by Condray upon some, business of his own. Upon these theories she requested the general charge as to each of the counts and upon the case as a whole.

We find it convenient at this point to dispose of the question raised by the court’s refusal of these charges. In this connection it must be noted that there was evidence tending to show that the machine had been in use and that Condray had been driving it, for the common carriage of passengers for hire about the city of Birmingham. The relation between the owner and the driver while the machine was being so used was governed by those general rules of law which obtain between master and servant, and the owner’s liability, to strangers for the wrongful and negligent acts and omissions of the driver in operating the machine depended upon the propriety of a finding on the evidence that the driver at the time of the act or omission complained of was acting for defendant and within the scope of his employment.—Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. R. A. (N. S.) 87. Condray testified that he had three passengers in the car at the time. Both parties were content to let the question, whether he was acting for the owner or upon some business peculiarly his own, rest for decision upon this statement of the witness and the evidence going to show that he was ordinarily engaged in operating the automobile as a public vehicle for the common carriage of passengers for hire, that defendant owned the machine, controlled its use, and enjoyed the benefit of its earnings. From this evidence, there being nothing in the circumstances to indicate the driver’s departure from the line of his employment, the jury might have found that the driver was at the time engaged in the business of the defendant.

Referring now to the rulings on evidence: Plaintiff’s effort was to show that defendant through the agency of Jones was using the car in the public business of carrying passengers, that she (defendant) had turned the car over to him for that purpose, and we think it may be said that plaintiff’s right to recover under the evidence depended upon a finding of these facts. As bearing upon-the question Avhether defendant did so use the car for the common carriage of passengers, the OAvnership of the car was the most seriously contested single fact in the case. The ultimate issue, of course, Avas whether the driver in charge of the car at the moment of the accident was the agent or servant of defendant or of Jones. There Avás no inherent necessity in the nature of things that the mere ownership of the car should determine liability for its operation. Defendant might have let the car to Jones for use in his business, giving him the control of it, without becoming responsible for the manner of its operation by him or his servants. But that explanation of the relation between them was not offered. There being evidence from Avhich the jnry might have found that the car was at the time the property of defendant, that it Avas being operated for the common carriage of passengers for hire through the agency of Jones, that Jones had authority to employ a driver for the car, that she had sent Condray to Jones for employment, that she paid Condray for his services, and that Jones accounted to her for the earnings of the car, she ansAvered the implications of this evidence by a denial of the facts and by other evidence going to show affirmatively that some months before the accident she had disposed of the car to Jones absolutely, that at the time she was not concerned in its operation, and that her accountings with Jones were not of the earnings but of payments on the purchase price of the car which, according to their concurring testimony, was to be paid for the most part in installments after delivery. Defendant’s ownership Avas provable under the issues involved, and, in vieAV of the conflicting tendencies of the evidence, it must have received much consideration at the hands of the jury. On the question of ownership, Jones, corroborating defendant, testified that he had bought the automobile and was using it in his own business. Thereupon plaintiff, after laying predicates amply sufficient to put the witness upon fair notice of the proposed impeachment, offered testimony of contradictory statements made by Jones shortly after the death of plaintiff’s intestate to the effect that defendant owned the car. This evidence was properly received. The contradictory statements were not entitled to be treated as assertions having substantive or independent testimonial value; they were entitled to consideration only as affecting the credibility of the witness; otherwise, they would have been obnoxious to the rule against hearsay.—2 Wigm. on Ev. § 1018. It would have been entirely proper for the court, ex mero at the time of its admission to inform the jury of the limited purpose for which such testimony was admissible; but the trial court cannot be put in error for overruling a general objection where the evidence is admissible for any purpose. It was the duty of the objecting party to invoke the action of the court to the end that a proper limitation of the evidence might be set before the jury.—B. & A. Ry. Co. v. Mattison, 166 Ala.608, 52 South. 59; Lamar v. King, 168 Ala. 292, 53 South. 279.

Condray, the driver or chauffeur, was called as a witness by both parties, first by plaintiff and then he was recalled by defendant. While he was testifying for plaintiff on his first appearance, defendant on cross-examination asked him whether Jones had ever told him that he owned the car. Plaintiff’s objection was sustained, and that ruling is assigned for error. The witness had just testified that he did not know who owned the car “at the time,” and possibly the previous course of the examination showed well enough that this testimony and this question related to the period in which the witness had been operating the car, viz., from a time “just after the fair” to the time of the accident. Appellant insists that since the machine was during the period covered by the question in the actual possession of Jones, or, in one view of the evidence, Jones’ servant, the witness, and Jones had then no interest or apparent motive -for misrepresentation, his declarations of his ownership were admissible in her behalf to show that she was not the owner.

On the general subject of the admissibility of such declarations there may be some confusion of idea and conflict of decision in our cases, as Prof. Wigmore has observed in his work on Evidence, where many of them are noted.—Note 8 to section 1779. As the result of our cases and the authorities generally, some general principles may be stated. Statements in disparagement of proprietary interest, when no motive for misrepresentation appears, are treated as entitled to consideration against the declarant and those claiming in privity with him without regard to their connection with possession or other concrete acts of ownership, on the ground that common experience shows such self-disowning statement to be entitled to some credit. For or against strangers such statements, when relevant to the fact in issue, are received on the ground of necessity in case the declarant is dead or when for other reason his sworn testimony cannot be had.—Hart v. Kendall, 82 Ala. 144, 3 South. 41.

The possession of property under claim of ownership is evidence of title, though it is of low grade and never conclusive where inconsistent explanatory facts are shoAvn. Claims of OAvnership are received in evidence on a theory different from that obtaining in respect to self-disowning declarations. • They are admitted without regard to their trustworthiness as psychological acts, not as evidence of the fact stated, but to explain a concurrent possession where the intent with which possession is held or the extent and character of the interest claimed are necessary to be considered in the determination of any issue involving a right of property or over property. Possession being the principal fact, such declarations are admissible as a part of the res gestae of the possession itself.—Humes v. O’Bryan, 74 Ala. 64; Daffron v. Crump, 69 Ala. 77; Payne v. Crawford, 102 Ala. 387, 14 South. 854: “But to make such declarations evidence, they must be connected with the principal fact under investigation. If the fact with which they are connected is not the material inquiry, or if the party is not sought to be charged because of the existence of the fact with which they are connected, they cannot be admitted as evidence.”—Tompkies v. Reynolds, 17 Ala. 109.

Here the machine was at the time of the disaster in the undisputed sole actual possession of the witness Condray, and his agency, whether for defendant or Jones, was the fact in issue between the parties. Jones was not on the scene, and the declaration asked for must have been made at some other time. It certainly was not of the res gestae of the accident. The ownership of the machine at the time was contested, and as we have indicated, competent evidence of ownership, as of a fact tending to prove or disprove Condray’s agency for defendant, including the testimony of Jones, had, and was entitled to1 have, consideration; but ownership was. contested, not as necessarily or even prima facie determinative of agency, but as a collateral fact having evidential force. But for this contested question of ownership at the time it is plain that Jones’ declaration at a previous time would have been both irrelevant and incompetent. The dispute about ownership removed the objection of irrelevancy, but it did not bring the declaration inquired about within any recognized exception to the rule against hearsay. There was therefore no error in sustaining the objection to the question.

There were numerous other exceptions reserved on the admission and exclusion of evidence. The rest, we think, do not require separate treatment. In some instances the court admitted evidence of defendant’s ownership of the automobile; in others, it excluded declarations made after the fact, clear hearsay; in others, declarations after the fact, where in conflict with the witness’ sworn testimony, were admitted, after proper predicate had been laid, to impeach the witness; in others, questions were allowed merely to explain the occasion and circumstances of statements made by defendant and other competent and relevant facts; in still others, the exceptions were too obviously devoid of merit to deserve classification even; and in some instances the exceptions, though noted in the assignments of error, are not treated in brief or argument. Each exception has been considered 'without finding error.

Charge 9 was properly refused to defendant. Two words must be supplied to make it sensible. As the trial court was, under the statute, required to give or refuse the charge in the exact language in which it Avas requested, and was Avithout authority to change its verbiage, verbal inaccuracy, affecting the meaning of the charge upon a strict construction, justified' the court’s refusal to give it.—L. & N. R. R. Co. v. Lile, 154 Ala. 556, 45 South. 699, and cases there cited.

Charge 10 also was verbally inaccurate, and was refused, possibly, for that reason. It might have been given without error, for in that event it would be held that the court and jury gave it the sensible construction of which it was fairly capable. But it does not follow that its refusal was error. In matters of this character the record is construed with favor to the trial court. Appellant’s argument for error in the refusal of the charge is that she stood in vital need of an authoritative statement to- the jury that in order to a verdict for plaintiff it should appear, not only that Condray was in the employment of defendant (appellant), hut that he was at the time of the disaster acting within the scope of his employment, especially so, -since the court in its oral charge to the jury had not stated the last-named necessity of plaintiff’s case. The court said nothing, nor was it in this charge requested to say anything, in reference to the necessity of proof that Con-dray was acting within the scope of his employment. The charge requested by defendant affirmed that the jury were to judge from the evidence whether the chauffeur, Condray, was acting within the scope of his employment; but it carried no instructions as to the operation and effect upon the case of a finding on that issue. It purported only to tell the jury that, if they believed from the evidence that. Condray was not in defendant’s employment, then they could not find for the plaintiff. But while this proposition was more than once stated to the jury in the court’s oral charge and in charges given at defendant’s request, there appeared in the evidence no substantial ground for questioning the fact that Condray, in whatsoever interest he was employed, was acting within the scope of his employment. The real controversy Avas whether in the carriage of passengers he Avas acting for defendant or for Jones only. In view of the facts that defendant had the full benefit of the main proposition of the charge, that there was no real exigency of the defense which demanded a statement of the law as to scope of employment, that even if there had been such exigency the charge requested by •defendant failed to state it or to meet it, and that the •charge was besides marred by verbal inaccuracy, we hold there was no reversible error in its refusal.

Charges 8, 11, and 12, refused to> defendant, and cursorily mentioned in her brief on appeal, might have been given without error; but there was no error in their refusal because they failed to- predicate the several postulated findings or mental status of the jury as based upon the evidence. This is enough to justify their refusal.

It has appeared in what we have heretofore said that the question of defendant’s liability was properly submitted to the jury. We are not at all of opinion that there was any overwhelming preponderance of the evidence in favor of the defense. On the contrary, we think it probable the jury reached a right conclusion. At least, the contrary does not appear, and the result must be affirmed.

Affirmed.

Anderson, C. J., and McClellan, Somerville, and Gardner, JJ., concur. Mayfield and de Graffenried, JJ., dissent.