(100 So.) was admissible in evidence. To the same effect was Rex v. Shaw, 6 Carrington & Payne's Reports, 372 (Eng. 1834), Patterson, J., where A. was in custody, and a fellow prisoner said, "I wish you would tell me how you murdered the boy, pray split" ("split" being an English colloquialism meaning to tell, confess). A. replied, "Will you be upon your oath not to mention what I tell you?" B., the fellow prisoner, went upon his oath that he would not tell, and A. then made a statement: and it was held not such an induce ment to confess as to render the statement inadmissible. In Rex v. Thomas, 7 Carrington & Payne's Report, 345 (Eng. 1836), a witness stated to the prisoner that he had better not confess, "but that the prisoner might say what he had to say to him, for it should go no further." The prisoner's statement was received in evidence on the trial. The reason of this rule is stated by Mr. Chief Justice Shaw in Commonwealth v. Morey, 1 Gray (Mass.) 462: "The ground on which confessions made by a party accused, under promises of favor, or threats of injury, are excluded as incompetent, is, not because any wrong is done to the accused, in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief, or avoid the threatened dan(Italics supplied.) ger. * And the rule is more tersely stated by Mr. Greenleaf, from Mr. Baron Eyre's declaration that a confession forced from the mind "by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it." Warickshall's Case, No. 127, 1783, 1 Leach's Crown Cases, 298; 1 Greenl. on Ev. (16th Ed.) § 218, p. 353. Hence it has ever been held that a mere promise of secrecy does not taint the confession made by a defendant, if it was not induced by the "flattery of hope" or the "torture of fear." No such flattery of hope or torture of fear induced the statement of this defendant that he carried the axe as a subterfuge. The judgment of the circuit court is affirmed. Affirmed. All the Justices concur. BRADLEY et al. v. ASHWORTH. (Supreme Court of Alabama. June 5, 1924.) I. Negligence 90-Automobile owner held not chargeable with contributory negligence of wife, driving. own pleasure, held not chargeable with her contributory negligence as a servant, agent, or employé. 2. Bailment, 21-Relation of bailor and bailee exists between husband owning car and wife using same; bailor liable only for negligence In permitting incompetent bailee to use car. As between the owner of a car used for professional purposes and his wife using same, by permission, for her own pleasure, the relation of bailor and bailee exists, and bailor is liable only for his negligence in permitting an incompetent bailee to use same. 3. Street Railroads 118(11)-Denial of instruction as to care required of plaintiff's wife driving car held not error. Where plaintiff suing for damages to his car while being driven by his wife was not chargeable with her contributory negligence, denial of an instruction as to the degree of care required of her held not error. 4. Appeal and error 1068 (5)-Denial of charge precluding recovery for wantonness and willfulness held not error. In action for damages to plaintiff's car refusal of requests that there could be no recovery for wantonness and willfulness or of punitive damages, held not error, where actual damages equaled amount assessed. 5. Street railroads 117(36)-Evidence of wantonness and willfulness held for jury. In action for damages to plaintiff's car from street car, evidence of defendant's wantonness and willfulness held sufficient to go to jury. Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge. Action for damages, for injuries to an automobile resulting from collision with a street car, by R. F. Ashworth against Lee C. Bradley and J. S. Pevear, as coreceivers of the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. Charges 2 and 3, refused to defendants, are as follows: "(2) The court charges the jury that the more difficult it is to see up and down the car track the greater the degree of care which the law imposes upon the driver of an automobile approaching the track for the purpose of driving across it. "(3) If you believe the evidence, you cannot award the plaintiff any damages for the purpose of punishing the defendant." Plaintiff, suing for damages to his automo- SAYRE, J. Plaintiff, appellee, owned an bile while being driven by his wife for her automobile which he used in the practice of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes his profession as a physician. When the A. 1917F, 380, Armstrong v. Sellers, 182 Ala. car was not in use by plaintiff, his wife had 582, 62 South. 28, Powers v. Williamson, 189 free use of it for her convenience and pleas- ala. 600, 66 South. 585, are collected in the ure, and, on the occasion in question, after footnote. In the text our case of Parker v. plaintiff, in company with his wife, had driv- Wilson, supra, Arkin v. Page, 287 Ill. 420, 123 en to his place of business down town, the N. E. 30, 5 A. L. R. 216, Van Blaricom v. wife, alone, was driving the car back home Dodgson, 220 N. Y. 111, 115 N. E. 443, L. R. when it came into collision with an electric A. 1917F, 363, Blair v. Broadwater, 121 Va. street car operated by defendants as receiv- 301, 93 S. E. 632, L. R. A. 1918A, 1011, Pratt ers. Plaintiff's wife was returning the car v. Cloutier, 119 Me. 203, 110 A. 353, 10 A. L. to her home with the purpose, at a later R. 1434, and Hays v. Hogan, 273 Mo. 1, 200 hour, of using it to call upon a relative who S. W. 286, L. R. A. 1918C, 715, Ann. Cas. was sick at a point some distance away. 1918E, 1127, are commented upon as furPlaintiff sued for damage done to his auto-nishing correct statements of doctrine. Many mobile, alleging, to state the case briefly, that defendants' employés in charge of the street car had so negligently managed the same that the collision was caused and plaintiff's automobile wrecked. There was also a count for wanton or willful injury. The defense proceeded in short by consent as under pleas of the general issue, and, as against the charge of simple negligence, the contributory negligence of plaintiff's wife in driving the automobile. Verdict and judgment went for plaintiff. Defendants appeal. cases to the same effect are noted on page 1130 of Ann. Cas. 1918E (Hays v. Hogan, supra). In Erlick v. Heis, 193 Ala. 669, 69 South. 530, and Hudgens v. Boles, 208 Ala. 67, 93 South. 694, the authority of Parker v. Wilson was conceded. So now, without indulging an unnecessary restatement of the law, we are satisfied to stand by that case. It results that, on the case presented by this record, plaintiff was not answerable for the contributory negligence of his wife as his servant, agent, or employé. The relation between plaintiff and his wife was that of bailor and bailee. As bailor plaintiff was entitled to maintain his action for any negligent injury done by defendant, a third person, to the subject of the bailment; but he was not liable to defendant for his bailee's negligence, the subject of bailment not being under the control of The trial court in effect instructed the jury that, if plaintiff's wife was using the automobile for her own pleasure or purpose, and was not about plaintiff's business, she was not his servant, agent, or employé, and her contributory negligence was not imputable to him, and could not defeat his recovery; actionable negligence on the part of defendants' motorman being proved. Defendants his own servant, agent, or employé. Dereserved the question for review. [1-3] It is suggested on behalf of appellee that this case is determined by the decision in Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. R. A. (N. S.) 87. Appellants, on the other hand, ask the court to adopt the "family purpose" doctrine, and thus, in effect, to overrule Parker v. Wilson. There are cases in which it is held that, where the head of a family keeps an automobile for the use and pleasure of his family-and we suppose that, among people of moderate means at least, most automobiles are so intended and kept the owner is liable for negligence in its operation. The author of "The Law Applied to Motor Vehicles," Babbitt (3d Ed.) | § 1178, observes that "this doctrine has strong reasons of convenience and public policy to recommend it, but no basis whatever in the law of agency" as we held in Parker v. Wilson-"and according to the great weight of authority in this country the owner is not liable on evidence merely that the owner permitted his minor son to operate his car for his own pleasure as it is held that this does not show that the son was the agent of the father acting in the scope of his employment." Like considerations apply, of course, in the case of other members of the owner's fam ily. The cases so holding, including Gardiner fendants' recourse, if any, under the facts, for the bailee's negligence was against the bailee. 6 C. J. pp. 1149-1151. The liability of the owner in such case must rest upon his negligence combined with that of the driver-his own negligence in intrusting his machine to an incompetent driver and the negligence of the driver in its operation (Parker v. Wilson, supra; Gardiner v. Soloman, supra; Beville v. Taylor, 202 Ala. 305, 80 South, 370), but in this case there was no contention that plaintiff had intrusted his machine. to an incompetent driver. The trial court followed, in effect, the stated theory of the law in its instructions to the jury and as well in its refusal of special charges requested by defendant. And the same reason justifies the action of the court in refusing to defendants the charge which we have marked 2 in the margin of the transcript. [4, 5] Nor did the court err in refusing defendants' request to charge that there could be no finding for plaintiff on the second count of the complaint, the wanton or willful count, or in refusing the charge we have marked 3 in the margin. These rulings of the court may be justified on the ground that the uncontradicted evidence showed that the actual damage to plaintiff's automobile and the expense to which plaintiff was put in hiring a (100 So.) Where act not negligent, in absence of actual or imputed knowledge of perilous position, is specified as cause of injury, no breach of duty is shown without allegation of such knowledge, though negligence may be sufficiently alleged in very general terms. Error in 4. Appeal and error 1040(10) overruling demurrer to complaint for omission of necessary allegation held cured by instructions requiring proof. Error in overruling demurrer to complaint for omission of allegation that engineer of train knew, or should have known, that plaintiff employed as switchman was in perilous position, held cured by clear instructions requiring proof of either fact. time in which to have repairs made equaled | 3. Negligence 110-Allegation of knowledge at least the amount of damages assessed, and of peril necessary. this, probably, is the better ground on which to deny error in this connection. However, assuming the propriety of assessing damages for wanton or willful injury in a case like this, that is, that the measure of damages may be augmented by reason of this element in defendants' conduct, there was evidence from which the jury were authorized to infer wanton or willful injury, that is, there was evidence that defendants' street car approached the crossing at which plaintiff's car was damaged at a high and dangerous rate of speed, and that, instead of making an effort to stop the car when he observed the presence and danger of plaintiff's car, defendants' motorman increased the speed of his car. His notion in doing this, according to his testimony, was that he hoped to outrun the danger-pass the crossing before plaintiff's car got on the track-and it may be that, had we been on the jury, we would have accepted this theory of his action as most probable. Still, it cannot be said that the jury were clearly wrong in their conclusion to the contrary or that the court committed error in overruling defendants' motion so far as predicated upon this ground. Other grounds of the motion insisted upon in argument have been noticed. The judgment should in our opinion be affirmed. Affirmed. 5. Master and servant ~256(3)-Complaint must show injury in performance of service. Complaint in servant's action for injuries must show that he was injured not only while in service or employment of defendant, but while engaged in performance of such service. 6. Master and servant 256(3)-Injury in service held sufficiently alleged. Complaint in servant's action against railroad for injuries held to show that he was injured while engaged in performance of service for which employed, though special service he was employed to do was not alleged. 7. Master and servant 137(3) Showing necessary to recover for injuries by jerk of train. In action for injuries to switchman thrown from car by sudden jerk, plaintiff must show ANDERSON, C. J., and GARDNER, and that he was thrown from car by sudden, exMILLER, JJ., concur. Supreme Court judicially knows from Const. 1901, § 242, Code 1907, § 5566, and Acts Sp. Sess. 1907, p. 125, as well as from general notoriety, that Southern Railway Company is common carrier, so that such fact need not be alleged or proved in action under federal Employers' Liability Act (U. S. Comp. St. §§ 86578665). traordinary, and unusually violent jerk, that such jerk was not necessary incident of operation, and that engineer knew, or bad reasonable grounds for believing, that plaintiff occupied such position on car that such movement would probably imperil his safety. 8. Evidence 595-Elements of liability not supported by direct evidence must be grounded, on conclusions of fact reasonably deducible from evidence. Existence of necessary elements of liability, if not supported by direct evidence, must be grounded on conclusions of fact reasonably deducible from evidence to sustain judgment for plaintiff. 11. Negligence 134(1)-Sufficient evidence distinguished from "conjecture." Conjecture is simply explanation consistent with but not deducible as reasonable inference from known facts or conditions, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes two or more plausible explanations as to how event happened or what produced it remain conjectures only if evidence is without selective application to any; but if there is evidence pointing to any logical theory of causation there is juridical basis for such determination, notwithstanding existence of other plausible theories with or without support in evidence. [Ed. Note. For other definitions, see Words and Phrases, Conjecture.] 12. Master and servant 270(16)-Testimony employé was in proper place held admissible. In action for injuries to railroad switchman thrown from car by sudden jerk, plaintiff's testimony that he was in proper place for performance of duties at time held material, relevant, and competent. 13. Trial 84(2)—Objection to evidence held not to call for ruling on admissibility as opinion evidence. Objection to evidence as immaterial, irrele vant, and incompetent does not call for ruling on admissibility as opinion evidence. 14. Evidence 514(3)-Switchman's opinion that he was in proper place for performance of duties at time of injury held admissible. Statements of opinion by qualified expert, such as that of railroad switchman, that he was in proper place for performance of duties at time of injury, are usually held admissíble. 15. Evidence 514(3)-Injured switchman's opinion as to whether jerk of train was extraordinary or unusual held admissible. In action for injuries to switchman thrown from car by jerk of train, plaintiff was properly allowed to state opinion as to whether jerk was extraordinary and unusually violent. 16. Evidence 558 (3)-Objection to question calling for opinion as to excessive speed held properly overruled. ence of unproved fact cannot be reviewed under assignment of error in overruling objection thereto, but must first be presented to trial court by motion for new trial. 19. Appeal and error 1058 (2)—Exclusion of testimony held not prejudicial in view of witness' subsequent testimony. In action for injuries to switchman thrown from car by sudden jerk of train, sustaining objection to question asking flagman to describe how plaintiff acted, and what was done when he came to witness' shanty day or two before accident, held not prejudicial to defendant, where witness afterward testified that plaintiff was walking like dizzy man, and sat down in shanty and went to sleep. 20. Witnesses 391-Question to Impeaching witness held improper as substantial departure from preliminary question propounded to witness sought to be impeached. In action for injuries to switchman thrown from car by sudden jerk of train, where de fendant's witness, who testified that there was no jerk at time of plaintiff's fall, was asked, for impeachment purposes, whether he stated in plaintiff's presence after injury that engine gave violent jerk "and threw you over against the car," testimony by plaintiff's witness, in answer to question whether he heard defendant's witness say that there was violent jerk of train "which caused you to fall from it," was improperly admitted; question being substantial departure from that propounded to defendant's witness, though both met all requirements as to time, place, and circumstance. 21. Trial 82-Scope of general objection that sufficient predicate for introduction of evidence for impeachment purpose has not been laid stated. Where predicate has been laid for introduction of evidence for impeachment purIn action for injuries to switchman thrown poses, objection that proper or sufficient predfrom car by sudden jerk of train, where engi-icate has not been laid is only general, and neer testified that 25 miles an hour was not will not be referred to any specific objection usual rate of speed for loaded freight train at which could have been obviated if pointed out at time. certain crossing, and that he was not running that fast at time of injury, objection to question, "That is too fast, is it not, for a freight train with 49 cars to go along Spring street?" on ground that witness had said he did not know what usual speed was, was properly overruled. 17. Appeal and error 1048(5)—Overruling objection to question held not prejudicial in view of witness' answer. In action for injuries to switchman thrown from car by sudden jerk of train, overruling objection to question asked of engineer as to whether it was necessary to suddenly bring about violent jerk at place of injury, to which witness answered, "I didn't do it," held not prejudicial. 18. Appeal and error 301-Prejudicial effect of question assuming unproved fact to be reviewed must be presented by motion for new trial. Prejudicial effect of question to witness as embodying assumption or suggestion of exist 22. Trial 62 (3)-Objection to question as not in rebuttal addressed to court's discretion. Objection to question as not in rebuttal is addressed to discretion of trial judge. 23. Master and servant 270(16)—Question as to violence of jerk of train held irrelevant. In action for injuries to switchman thrown from car by jerk of train, question to plaintiff as to whether it jerked with such violence as to jerk his hand loose from grabiron held irrele vant. 24. Trial 84(2)-Objection to question as incompetent held not available for exclusion as calling for conclusion, Objection to question to injured switchman as to whether train jerked with such violence as to jerk his hand loose from grabiron as incompetent held general objection, not available for exalusion of question, as calling for conclusion invading jury's province. 25. Master and servant (100 So.) 137(3)-Care re- from car was opposed to verdict held not ground for reversal, especially where trial judge, who saw and heard witnesses, declined to interfere by granting motion for new trial. quired of engineer as to switchman on cars. Engineer of freight train may assume that switchman will not place himself in position of special peril; but, knowing that he is stationed on top of car, and accustomed to get off train while moving at certain point, and hence is in position of contingent peril in case of extraordinary jerk of train, is bound to govern himself accordingly. 26. Master and servant 286 (30)—Engineer's negligence as to switchman on cars held for jury. Whether engineer of freight train owed switchman stationed on top of car duty to stop train without sudden violent jerk held for jury. 27. Master and servant 293 (19)-Instruction on engineer's negligence as to switchman held misleading. In action for injuries to switchman thrown from car by sudden jerk of train, instruction that engineer could assume that plaintiff was not in perilous position at time held properly refused as misleading, in view of evidence of engineer's knowledge of plaintiff's position on top of car and custom of getting off train while moving. 28. Trial 252(11)—Instruction as to custom of switching cars without connecting air brakes held properly refused as abstract. In action for injuries to switchman thrown from car by sudden jerk of train, instruction that it is usual and customary to switch cars in railroad yards without connecting and using air brakes on all of cut held properly refused as abstract. 29. Master and servant 291 (5)-Instruction as to custom of switching cars held irrelevant. In action for injuries to switchman thrown from car by sudden jerk of train, instruction as to custom of switching cars without connecting air brakes on all of cut held properly refused as irrelevant. 33. Damages 132(6)-Verdict for $50,000 for broken legs, with resulting operations, confinement, expenses, and loss of earnings, held excessive by $20,000. Verdict for $50,000 for compound fracture confinement in hospital for 53 weeks and to bed of both femurs, resulting in five operations and for about 6 months thereafter, permanent disfigurement, and partial crippling for life, expenditure of $4,000 for treatment, and loss of $150 per month in earnings, held excessive by $20,000. Appeal from Circuit Court, Jefferson Coun; ty; C. B. Smith, Judge. Action for damages by H. T. Dickson against the Southern Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed conditionally. Count 2, upon which the cause was tried, is as follows: . "Plaintiff claims of defendant the sum of $100,000, for that, on, to wit, June 3, 1920, plaintiff was in the service and employment of defendant, and was upon a car which was then and there being used in interstate commerce, and plaintiff was at the time in the employment of defendant in interstate commerce and engaged in the performance of his duties for in commerce between the states of Alabama defendant while such defendant was engaged and Tennessee, and plaintiff was aiding in his employment for defendant in such commerce between the states, and, while plaintiff was engaged in the said performance of his duties for defendant, as aforesaid, he was upon a car, upon a railroad track, which said car was attached to a train of cars pulled by an engine, and in the performance of his duties for defendant it was necessary for plaintiff to be on said car while the said train was in motion, Charge that, if there is nothing more tangi- and while the train was in motion as aforeble for jury to proceed on than two or more said, and plaintiff was on said car, the train conjectural theories, it is immaterial that the- and car on which plaintiff was riding gave a ory suggested in plaintiff's interest is more sudden, violent, unusual, and extraordinary probable than that suggested in defendant's in- jerk, throwing plaintiff to the ground, breakterest, held properly refused as unfit in forming both of his legs, severely bruising and inand phraseology for charge to jury, though sound expression of judicial philosophy; being formula for courts' use in reviewing verdicts. 31. Trial 131(2)-Objections to counsel's arguments cannot be raised by requested charges. 30. Trial 228 (3)-Instruction as to immateriality of greater probability of one of two or more conjectural theories held properly refused. Objections to arguments of counsel must be taken when statements are made and cannot be raised by requested charges. 32. Appeal and error 1005 (3)-Weight of conflicting evidence against verdict held not ground for reversal. That weight of conflicting evidence on question whether there was sudden and violent jerk of train proximately causing fall of switchman juring him on other parts of his body, causing him great physical pain and mental anguish, causing him to lose much time from his labors and the remuneration he would have received therefor, permanently crippling and deforming plaintiff, and rendering him less able to earn a livelihood for the balance of his life, causing him to spend large sums for nursing, medicine, and medical treatment, and so injuring his body that he will continue to be compelled to spend money for nursing, medicine, and medical treatment. Plaintiff further avers that all of his said injuries and damages were proximately caused by the negligence of the engineer, one Ledford, then and there in charge and control of the engine pulling the train of cars, and acting in the line and scope of his duties as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |