6 Div. 623.
October 10, 1940.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Ross, Ross Ross, of Bessemer, for appellants.
Each count of the complaint is in trespass against defendant Crotwell and in case against defendant Daniel. Plaintiff may not combine two causes of action in the same count. 1 C.J. pp. 999-1002, § 126; Code 1923, § 9467; 63 C.J. 886, § 1A; Louisville N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; So. R. Co. v. Hanby, 166 Ala. 641, 52 So. 334. Defendants were entitled to the affirmative charge or to have the verdict set aside on motion for new trial. So. R. Co. v. Harrington, 166 Ala. 630, 52 So. 57, 139 Am.St.Rep. 59; Birmingham Stove R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Jones v. Ala. Min. R. Co., 107 Ala. 400, 18 So. 30. Charge 17 states a correct proposition of law, and its refusal was prejudicial error. Ala. Highway Code, Gen.Acts 1927, pp. 348, 372, § 64A; Greer v. Marriott, 27 Ala. App. 108, 167 So. 597.
Edw. H. Saunders, of Bessemer, and G. P. Benton, of Fairfield, for appellees.
Principal and agent can be joined in an action for injuries to person struck by automobile driven by agent, based on simple negligence. Hawkins v. Barber, 231 Ala. 53, 163 So. 608. When a state of facts is such that reasonable men may fairly differ upon the question as to whether or not there was negligence, determination of the matter is for the jury. Birmingham Stove R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334. Charge 17 was bad and properly refused for that it pretermits the element of proximate contribution to the injury. Crotwell v. Cowan, 236 Ala. 578, 184 So. 95. The defendants were not due the affirmative charge. Crotwell v. Cowan, supra.
On the trial following the remandment, the complaints were amended by adding Count A and withdrawing all other counts. Count A ascribes the plaintiff's injury and damages consequent upon the collision of the two automobiles, to the negligence of the defendant Crotwell in the operation of the Daniel's automobile, as the agent of the defendant Daniel acting within the scope of said agency. One of the contentions of the appellants is that said Count A is in trespass as to Crotwell and case as to Daniel, and offends the rule that trespass and case can not be joined in the same count. Counts in case and trespass may be joined in the same action when they relate to the same occurrence or acts, and to all of the defendants, but it is not permissible to join case and trespass in the same count. Louisville Nashville R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103.
Under the common law, the foundation for civil liability for injuries to persons and property consequent upon the unintentional application of force, whether the act be affirmative or omissive, is negligence, and the appropriate common law action is case, speaking more correctly, trespass on the case. But when force is intentionally applied by direct affirmative act it is trespass and the appropriate action for the recovery of damages therefore is trespass. Pruitt v. Ellington, 59 Ala. 454; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Aldrich v. Tyler Grocery Co. et al., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617; 20 R.C.L. p. 6, § 1; Central of Georgia Railway Co. v. Freeman, 140 Ala. 581, 37 So. 387; Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017; Birmingham Railway Light Power Co. v. Wright, 153 Ala. 99, 44 So. 1037.
In City Delivery Co. v. Henry, supra [ 139 Ala. 161, 34 So. 390], it was observed: "The first and third counts of the complaint aver that 'the defendant, by and through its agent or servant, John McClary, negligently caused an ice wagon which was drawn by mules or horses to run against and strike plaintiff with great force, thereby throwing her to the ground and inflicting upon her serious injuries,' etc. It is insisted for appellant that these counts are in trespass, and not case. We think not. If it be granted that, construing the averments against the pleader, the intendment is that the running against and striking the plaintiff were directly caused by the negligent act of the defendant itself, and not that the collision was due to the negligent act of the defendant's servant, merely, still the injury, being a resultant of negligence, and not of intentional causation, would be indirect, wanting in the application of force, and consequential, within the doctrine which distinguishes case from trespass." [Italics supplied.]
Applying the reasoning to said count A, it is in case as to both defendants, and is not subject to the objection now made to it. The demurrers of the defendants were, therefore, properly overruled.
The court did not err in refusing defendants' requested written charge 17. If for no other reason, it was defective in pretermitting the element that plaintiff's negligence proximately contributed to the injury and damages. Crotwell et al. v. Cowan et al., supra.
The evidence, offered on the last trial, as to relevant substantive facts, is in substance the same as was given on the former trial, presenting questions for jury decision as to defendant's negligence as well as contributory negligence on the part of Mrs. Cowan. The several affirmative instructions requested, as well as the general affirmative charge for each of the defendants, were properly refused, and the motion for new trial was overruled without error.
We have examined the several rulings on evidence and the court's rulings on objections to argument of plaintiff's counsel to the jury. We find no error therein.
The record and proceedings on the trial appear to be free from error.
GARDNER, C. J., and THOMAS and KNIGHT, JJ., concur.