Opinion
8 Div. 492.
April 13, 1933. Rehearing Denied May 18, 1933.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
Tennis Tidwell, of Decatur, for appellant.
Count 2 of the complaint charges willfulness and wantonness as a conclusion, and the demurrer taking this objection should have been sustained. Ala. Power Co. v. Gooch, 221 Ala. 325, 128 So. 793; Harrison v. Formby, 225 Ala. 260, 142 So. 572, 573; Alabama G. S. R. Co. v. Smith, 191 Ala. 643, 68 So. 56; Jones v. Keith, 223 Ala. 36, 134 So. 630. It was error to permit the qualification of jurors as to interest in an insurance company. It is permissible to examine jurors as to their relation to or interest in any insurance company which would be liable for any judgment that might be rendered against the defendant to ascertain the fitness of jurors, but not to bring out such facts for the purpose of prejudicing the jury. It was shown that defendant had accident, not liability, insurance, and that the insurance company had failed. Gammill v. Culverhouse, 217 Ala. 65, 114 So. 800; Cooper v. Auman, 219 Ala. 336, 122 So. 351; Int. Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270; Citizens' L., H. P. Co. v. Lee, 182 Ala. 561, 62 So. 199; Beatty v. Palmer, 196 Ala. 67, 71 So. 422. The acts of defendant constituted nothing more than simple negligence. There was no willfulness or wantonness, and he was entitled to the affirmative charge as to count 2. Ala. Power Co. v. Gooch, supra; Birmingham, etc., Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Highland, etc., R. Co. v. Robbins, 124 Ala. 113, 27 So. 422, 82 Am. St. Rep. 153; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Ala. Power Co. v. Conine, 210 Ala. 320, 97 So. 791; Smith v. R. Co., 165 Ala. 407, 51 So. 792; Birmingham, etc., Co. v. Bowers, 110 Ala. 328, 20 So. 345; Birmingham, etc., Co. v. Norton, 7 Ala. App. 571, 61 So. 459; Allison C. T. Co. v. Davis, 221 Ala. 334, 129 So. 9; Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Johnson v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920. If willful injury is charged, it must be shown that it was intentionally and designedly done. The oral charge omitted all reference to knowledge of the danger and of the design or purpose to inflict the injury, and constituted error. Cent. of G. R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Ala. Power Co. v. Gooch, supra; Adler v. Martin, 179 Ala. 97, 59 So. 597; Feore v. Trammel, supra.
A. J. Harris and Norman W. Harris, both of Decatur, for appellee.
Count 2 is sufficient. Simple negligence or willful or wanton negligence may be pleaded as a conclusion. Both the act and the injury are characterized by the count as wanton. Southern R. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Yarbrough v. Carter, 179 Ala. 356, 60 So. 833; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469. But the ruling on the demurrer was without injury, since the necessary allegations were proved and the court correctly stated the law on the subject. Best Park Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929. It was proper to ascertain the interest of jurors, if any, in the insurance company, regardless of the fact that it was being liquidated. Citizens' L., H. P. Co. v. Lee, 182 Ala. 561, 62 So. 199. The evidence made a question of fact for the jury under the second count. Birmingham R. E. Co. v. Bowers, 110 Ala. 328, 20 So. 345; Holmes v. Cent. of G. R. Co., 22 Ala. App. 355, 116 So. 323; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Byram Co. v. Livingston, 225 Ala. 442, 143 So. 461; Ashley v. McMurray, 222 Ala. 32, 130 So. 401. To constitute wantonness it is not necessary that there be an intention to injure. The oral charge of the court correctly defines wantonness and willfulness. Birmingham R. E. Co. v. Bowers, supra; Holmes v. Cent. of G. R. Co., supra; Duke v. Gaines, supra; Byram Co. v. Livingston, supra.
The action was for damages for injuries to person and property growing out of the collision of defendant's truck with the plaintiff's wagon on a public highway.
The vehicles, each driven by the owner, were going in the same direction on a paved highway; and the collision occurred as the truck was passing the wagon.
Count 2 of the complaint charged that defendant "so willfully or wantonly managed or operated said truck as to cause the same, as a proximate consequence of such willfulness or wantonness, to run into and collide with said wagon in which plaintiff was riding."
This averment is the equivalent of saying defendant wantonly or willfully ran the truck into the wagon in which plaintiff was riding; and was not subject to demurrer on the ground that it states the conclusion of the pleader. Jackson v. Vaughn, 204 Ala. 543, 86 So. 469 (par. 1 of opinion); Alabama Power Co. v. Gooch, 221 Ala. 325 (count 2, p. 326), 128 So. 793; Blankenship v. Van-Hooser, 221 Ala. 542, 130 So. 63; Byram Co. v. Bryan, 224 Ala. 466, 140 So. 768, and cases there cited; Birmingham Electric Co. v. Mann, ante, p. 379, 147 So. 165.
On inquiry, as we read the record, the trial judge properly ascertained a policy of liability insurance in a named company was held by defendant. Evidence that such company was in liquidation, without further evidence that stockholders had no interest therein, did not put the court in error in qualifying jurors as to their interest in such company.
The truck struck the wagon as it turned to the left to pass. The chief issue of fact was whether the wagon suddenly or unexpectedly stopped, or stopped and backed, causing or contributing to the collision. This issue was clearly for the Jury. If, in passing an overtaken vehicle on a paved road 18 feet wide, the leading vehicle being well to the right of the center of the road, making no stop or other move to contribute to a collision, the driver of the passing truck with full knowledge of all the conditions, including defective condition of brakes and the character of his load, in full daylight, runs into and collides with the leading vehicle, no outside agency intervening, the question of wantonness was for the jury.
Plaintiff's evidence tended to support the above state of facts, and the affirmative charge on the wanton count was properly refused.
The trial court's definition of wantonness as set forth in assignment of error 41, was not error.
J. C. Byram Co. v. Livingston, 225 Ala. 442, 143 So. 461. The charges refused to defendant were fully covered by the given charges and the oral charge of the court.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.