Monarch Livery Co. v. Luck

ANDERSON, J. — ’While the proof in this case is by no means conclusive, or even very specific, as to the identity of the horse and buggy that collided with the plaintiff’s Avagon, or that the boy in control of the same Avas the servant of this defendant, yet the evidence Avas such as to enable the jury to infer that the horse and buggy belonged to Dr. Masterson and was in charge of a boy delegated by the defendant to take it to the OAvner, and who was boarding the said horse at the defendant’s stable. The jury could also infer that the boy was acting within the line or scope of his duty to deliver the said horse and buggy Avhen he ran into or collided Avith the plaintiff’s vehicle. We are not, therefore, prepared to say that the trial court erred in refusing the general charge requested by the defendant, either upon the theory that the identity of the horse and buggy was not established or that the same had not been put in control of [523] the boy by this defendant for the purpose of delivering same to the owner, and who was attempting to do so at the time of the injury. There was no error in permitting the witness Mrs. Masterson to testify that she telephoned the defendant’s stable early that morning to send the horse to the doctor. The use of the telephone is a well-known method of communication, and when she telephoned the defendant, her direction was presumptively received by some one in the stable whose duty it was to answer telephone calls. It was also competent, when taken in connection with all the other evidence, as tending to connect the defendant with the horse answering the description of Dr. Masterson’s, and of placing the boy in charge of same in obedience to the order of the witness to send the said horse and buggy out to Dr. Masterson. The fact that a little heavy-set negro- boy, 10 or 12 years old, came to Dr.. Master son’s house that morning, instead of the horse and buggy, was not competent. In the first place, he was not identified as the same boy that drove into the plaintiff, and, even if he was, his subsequent act or conduct Avas not admissible. It is evident that any declaration made by this boy long-after the collision was not admissible, -and which seems to have been realized by all parties, as the record discloses no attempt to prove what he said; yet upon the same legal principles the subsequent conduct of the boy was equally inadmissible. This evidence was also calculated to be prejudicial to the defendant, by permitting the plaintiff to create inferences as to the identity and ownership of the horse and buggy by the subsequent acts and condudt of -a little negro boy, and which was no part of the res gestae. There was no reversible error as to the other rulings upon the evidence. [524] We do not understand so much of the oral charge, as was excepted to, as authorizing the jury to assess damages both for loss of time and average earnings. It authorized only damages for lost earnings based on lost time. There was no error in refusing charge 7, requested by the plaintiff. Charge 9, refused the defendant, should have been given. Charge 1, given the plaintiff, looks like an explanation of such a charge as 9; but the record does not disclose a written duplicate to said charge 9. There was no error in refusing charge 5, requested by the defendant. — A. G. S. R. R. v. Robinson, 183 Ala. 265, 62 South. 813, wherein the Saxon Case, 179 Ala. 136, 59 South. 584, was overruled as to a similar charge. There was no eror in refusing charge 7, requested by the defendant. The judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.