Opinion
1 Div. 102.
December 19, 1940. Rehearing Denied January 23, 1941.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Lyons Thomas, of Mobile, for appellant.
Charge 1, given for plaintiff, is an incorrect statement of the law which injuriously affected defendant's rights and constituted reversible error. Supreme Court Rule 45; Western Union Tel. Co. v. Gorman, 237 Ala. 146, 185 So. 743; Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906; Alabama G. S. R. Co. v. Burks, 148 Ala. 113, 41 So. 638; Huntzicker v. Illinois Cent. R. Co., 7 Cir., 129 F. 548; Weisser v. Southern Pac. R. Co., 148 Cal. 426, 83 P. 439; Millsaps v. Louisville N. O. T. R. Co., 69 Miss. 423, 13 So. 696. Defendant's requested charges 4 and 4a correctly stated the law and should have been given. Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; Southern R. Co. v. Hargrove, 26 Ala. App. 165, 155 So. 316; Clark v. Farmer, 229 Ala. 596, 159 So. 47. Charge 16 is correct. Southern R. Co. v. Lambert, 230 Ala. 162, 160 So. 262. Charge 11 is correct. Gulf Refining Co. v. McNeel, 228 Ala. 302, 153 So. 231. Questions asking witnesses whether Howard had told them about the accident should have been allowed. Also, questions as to whether or not messenger boys, not presently engaged in their duties, ever did things personal to themselves. Western Union Tel. Co. v. Gorman, supra.
Harry T. Smith Caffey, of Mobile, for appellee.
Under the facts hypothesized in plaintiff's charge 1, and supported by the undisputed evidence, Howard, while engaged in learning the duties of his employment, was an agent, though he was not paid for his services. The giving of this charge was proper. Western Union Tel. Co. v. Gorman, 237 Ala. 146, 185 So. 743; Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906; Alabama G. S. R. Co. v. Burks, 148 Ala. 113, 41 So. 638. What other employes did or did not do on other occasions was res inter alios acta, and wholly irrelevant to show that the particular employe had departed from his duty at the particular time involved in this suit. Utley v. Stevens, 221 Ala. 666, 130 So. 405; Smith v. Wilson Mercantile Co., 6 Ala. App. 171, 60 So. 484; Elba v. Bullard, 152 Ala. 237, 44 So. 412; Thornton Co. v. Savage, 120 Ala. 449, 450, 25 So. 27; Spiva v. Stapleton, 38 Ala. 171. Defendant's charge 17 is abstract, misleading in its tendency, invasive of the province of the jury, and improperly isolates a single item of evidence. Western Union Tel. Co. v. Gorman, supra. "Even though" charges are bad and properly refused. Louisville N. R. Co. v. Parker, 223 Ala. 626, 138 So. 231. Charge 14 is a "sole proximate result" charge, not limited to initial negligence, but applicable as well to subsequent negligence, and if given would have been reversible error. Johnson v. Louisville N. R. Co., 220 Ala. 649, 127 So. 216; Grauer v. Alabama G. S. R. Co., 209 Ala. 568, 96 So. 915; Boyette v. Bradley, 211 Ala. 370, 100 So. 647. Charges 4 and 4a were "mere accident" charges and as such refused without error. Mobile O. R. Co. v. Williams, 226 Ala. 541, 147 So. 819; Smith v. Baggett, 218 Ala. 227, 118 So. 283; Loreno v. Ross, 222 Ala. 567, 133 So. 251. Where the contributory negligence of plaintiff was not an issue, charge 16 was erroneous and prejudicial as impressing on the jury an abstract issue, and was properly refused. Johnson v. Louisville N. R. Co., supra. There was no error in refusing the affirmative charge to defendant. Western Union Tel. Co. v. Gorman, supra.
This is the second appeal on this case. See, Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 743, 745.
On the first appeal it was held: "From the evidence the jury might have found that the boy negligently caused the accident or that it was the result of his wanton or wilful misconduct."
To state the proposition in other words, the evidence presented a question for jury decision under both counts by the complainant. The second trial was had on the same complaint as the first, and the evidence, it is conceded, is substantially the same as on the first trial. The affirmative charge requested by the defendant was properly refused. We are not of opinion that the verdict was excessive. The evidence supports the verdict, and the motion for new trial was overruled without error.
The facts hypothesized in plaintiff's given charge 1 constituted Howard, pro hac vice, an agent or servant of the defendant acting within the line and scope of his employment. Western Union Telegraph Co. v. Gorman, supra.
Defendant's refused charge 2 was substantially covered by defendant's given charges 7 and 10.
Defendant's charges 4, 4 (a), and 17, were refused without error. Charges 11, 14, 22 and 23, are "even though" charges, repeatedly condemned as bad in form, and as argumentative. Louisville N. R. Co. v. Parker, 223 Ala. 626, 646, 138 So. 231; Birmingham R. L. P. Co. v. Saxon, 179 Ala. 136, 161, 59 So. 584. Moreover the proposition of these charges is correctly and concisely stated in special charges 7 and 10 given at the request of the defendant.
Defendant's refused charge 16 is uncertain of meaning, possesses misleading tendencies to the result of inculcating the idea that "plaintiff's own act" constituted negligence within the issues presented by the pleadings, while in fact no such negligence was pleaded. The evidence is without dispute that the act of the rider of the bicycle proximately caused plaintiff's injuries, and the only litigated question of fact was whether or not said rider was the agent or servant of the defendant, at the time, acting within the scope of such agency or employment. The charge was refused without error.
The witness Howard testified that he told Willie Harrison that he had an accident and his testimony on this point was not disputed, nor was it material. The sustention of plaintiff's objections to questions asked Harrison eliciting this same fact was not error.
The fact that other messenger boys on sporadic occasions went on missions of their own in no way connected with their employment while in uniform was without probative force as showing or tending to show that Howard on the occasion of plaintiff's injury was on such mission, and the objection to the proffered evidence was properly sustained.
We find no reversible error in the proceedings of the circuit court.
Affirmed.
GARDNER, C. J., and THOMAS and KNIGHT, JJ., concur.