S. E. Webb & Co. v. Riley , 16 Ala. App. 570 ( 1918 )

This is an action for damages for personal injuries growing out of the falling of a porch swing alleged to have been negligently hung by the appellant. Issue was joined on the general issue and pleas of contributory negligence.

The evidence for the appellee, who was plaintiff in the court below, shows that she purchased of the appellants, defendants in the court below, a porch swing, and that the price paid therefor included the cost of hanging the swing on appellee's porch in a secure manner, or, as she pointedly puts it, "to stay." The appellee's evidence further tends to show that the screws by which the swing was attached to the ceiling were inserted in a half-inch plank, and that it was the pulling out of these screws that caused the swing to fall, and as a consequence broke appellee's leg. There was evidence that there was heavier timber on said porch to which the swing might have been attached.

The appellants admit the sale to the appellee of the swing, but deny that the swing was to be hung. The man who, appellee testified, hung the swing, was the employé of appellants, and testified that he could not recall whether he hung the swing or not. One of the defendants testified that his man had no authority to hang the swing, if, in fact, he did so.

There is no evidence supporting the appellants' pleas of contributory negligence. The court did not err in sustaining the demurrers to plea 2. The appellants subsequently amended this plea, and its sufficiency was not challenged. This fact cured the error, if any, in sustaining the demurrers to the original plea two. Stephenson et al. v. Parsons et al., 6 Ala. App. 615,60 So. 592.

The appellants were not entitled to the general affirmative charge. There is a direct conflict in the evidence in regard to appellants' duty and their performance of it. The affirmative charge should never be given where there is any material conflict in the evidence, or where there is evidence which authorizes a reasonable inference of facts unfavorable to a right of recovery by the party asking such charge. Under the facts shown by the record, the jury could reasonably infer that the injury was caused by the negligence of the defendant in attaching the supporting screws in the insecure wood, and the rule has been well settled in this state that negligence and the failure to exercise due care and ordinary caution, like any other fact, may be inferred from circumstances, and the court would not be justified in taking the case from the jury unless, as a matter of law, no recovery could have been had in the case upon any view which could properly have been taken of the evidence and of the reasonable tendencies afforded by it. The affirmative charge in behalf of the defendants was therefore properly refused. McCormack Harvesting Mach. Co. v. Lowe,151 Ala, 313, 44 So. 47.

The appellants' agent, whom appellee testifies hung the swing, was acting within the line or scope of his employment, and it is immaterial that he hung the swing without the authority of the appellants. Their liability is not limited to the acts done under the master's instruction. Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 Ann. Cas. 1149; Hardeman v. Williams, 169 Ala. 50, 53 So. 794. The court therefore properly refused charge 3 requested by appellants.

Charges 2 and 4 requested by the defendants were properly refused; there being no evidence to support the pleas of contributory negligence, and they were therefore abstract. Baskett Lumber Manufacturing Co. v. Gravlee et al., 15 Ala. App. 359,73 So. 291.

Charges 5, 9, and 10 asked by appellants were properly refused. The fact that the amount paid for medical services was for a period beyond the date of the filing of the suit and the cla im for medical expense is sufficiently averred in the complaint. The debt for these services was incurred prior to the filing of the suit, and the jury could properly find under the evidence in the case that the obligation to pay was then existing.

Charges 6 and 11 asked by appellants were erroneous and misleading. The price paid for the swing was immaterial.

Charge 7 was clearly erroneous, and was properly refused. If the appellee is entitled to recover, she is certainly entitled to compensatory damages.

We find no error authorizing the reversal of this case, and the judgment of the lower court is affirmed.

Affirmed.