MAYFIELD, Justice.
This is an appeal from final judgments rendered in behalf of both appellees, the plaintiffs below, by the circuit court of Jefferson County. This appeal involves two actions, one for personal injuries to the plaintiff, Vernice Holmes, and the other for loss of consortium on the part of her husband, Alva L. Holmes. Both here and in the trial court, the actions were consolidated.
The accident out of which these cases arose occurred on 9 February 1952 at approximately 9:00 A.M. According to the testimony of Vernice Holmes, she had been in Greenwood's Cafe, Birmingham, shortly prior to the accident. As she left the cafe, she proceeded north on the east sidewalk along 20th Street. There is an alleyway which separates Greenwood's Cafe from the Tutwiler Hotel. As she approached this alleyway, she saw a milk truck drive into the alley which crosses the sidewalk. The truck stopped in a position partially blocking the sidewalk directly in front of Mrs. Holmes. She described the truck as being cream colored and bearing the name "Barber Pure Milk" in red letters. As Mrs. Holmes approached the truck she stopped for a few seconds and saw a negro man get out of the cab of the truck on the side on which she was standing, and run to the rear of the truck. As Mrs. Holmes started across the alley and around the end of the truck the man who had just alighted from the cab of the truck opened the rear door in a sudden manner causing it to strike her in the head. Mrs. Holmes has no knowledge of what happened from the time she was struck by the door of the truck until she regained consciousness that afternoon in the office of Dr. J. M. Donald, who is the physician of the Barber Milk Company. She does not know how she reached the company doctor's office, located at Five Points, Birmingham. Mrs. Holmes did not know Dr. Donald and did not meet him until she regained consciousness in his office.
A few days following the accident Mrs. Holmes identified a truck on the defendant's premises as being the same or "a similar truck" to that which caused her injury. At the trial she likewise identified photographs of one of the defendant's fleet of trucks.
No witnesses other than the plaintiff testified concerning the actual occurrences which led to Mrs. Holmes' injury. Considerable evidence was introduced by both the plaintiff and defendant regarding the extent of her injuries. The evidence of the defendant was purely negative and tended to show that none of its trucks were involved in the accident. Various of defendant's employees testified that they had no knowledge of the accident. They also testified as to the details of the defendant's routine operations which testimony tended to show that it was improbable that any of defendant's trucks would have been stopping in this particular alley at the time of the accident. Among the employees who testified was defendant's sales manager, who was notified of the accident by telephone shortly after it happened.
Mr. Arthur Greenwood gave evidence that he had no knowledge of the accident outside his place of business on the day in question. He further testified that milk trucks of dairies, other than defendant, also used this particular alley, daily. A police officer who was on duty one-half block from the place of the accident, at the corner of Fifth Avenue and 20th Street, also testified for the defendant. He stated that he knew nothing about the accident and further that when he made his investigation, approximately one week after Mrs. Holmes' injury, he was unable to find any person who witnessed the accident.
"Count Three
The appellant strenuously urges that the trial court erred in overruling its demurrer to the complaint. The first proposition advanced in support of this contention is that the general averment of negligence will not suffice in the absence of a showing of a breach of duty owed by the defendant to the plaintiff. Such is a correct statement of the law. Appellant here relies on the case of Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170, 171, where it was stated:
We must determine whether the present complaint alleged facts from which the law will imply duty. In this regard, we held in Dozier v. Woods, 190 Ala. 279, 67 So. 283, the following:
The same proposition was restated in Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556, which case was cited by appellee. The complaint in the present case states that the plaintiff was a pedestrian on a public street in the City of Birmingham. As a matter of law, she had a right to be at the place where the accident occurred. We are of the opinion that the allegation is sufficient to show a duty on the part of the defendant not to negligently or wantonly injure her. So considered, the general allegation of negligence was sufficient. See, also, Smith v. Tripp, 246 Ala. 421, 20 So.2d 870, 871.
The complaint was technically defective in that it failed to allege sufficiently the relationship between the defendant or his servant and the instrumentality allegedly causing the injury. In Smith v. Tripp, supra, this court held:
The complaint did not contain sufficient allegations of the relation between the defendant servant and his control of the door of defendant's truck. This defect was challenged by apt demurrer and the trial court should have sustained the demurrer. See, Levans v. Louisville & N. R. Co., 228 Ala. 643, 154 So. 784; and Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228. While this omission was technically error, the complaint as a whole stated a good cause of action. It is, therefore, error without injury, since it appears without dispute from the evidence that at the time of the injury, the negro helper, alleged to be a servant, agent or employee of the defendant, and against whom the negligent act is charged, was in actual manual control of the instrumentality causing the injury. Smith v. Tripp, supra; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.
The principal issue contested at the trial concerned the ownership of the truck in question by the defendant and the agency of the alleged servant of the defendant. The essential questions of this controversy are clearly brought into focus by distinguished counsel for the appellant. He contends:
We are cited to no prior Alabama decisions which are dispositive of the complex issues as they are presented to this court by the appellant. Some aspects of the appellant's defensive position have, however, been considered by this court.
It is well-settled that proof of ownership of an automotive truck causing injury raises an administrative presumption that the person in possession and control of the truck is the agent or servant of the owner, and that he is acting within the line and scope of his employment. Rogers v. Hughes, 252 Ala. 72, 39 So.2d 578, and cases cited therein.
In Hancock v. Liggett & Myers Tobacco Co., 253 Ala. 63, 64-65, 42 So.2d 632, 633, the following statement is found:
In Dortch Baking Co. v. Schoel, 239 Ala. 266, 268, 194 So. 807, 808, the plaintiff, Schoel, brought an action for personal injury and property damage arising out of a collision between the plaintiff's autobike and a truck alleged to be owned by defendant, Dortch Baking Company. The question presented was the agency vel non of the driver of the truck. The facts essential to our consideration are set out in the following quoted portion of this court's opinion:
In Duke v. Williams, 249 Ala. 574, 579, 32 So.2d 362, 367, which was also an action for personal injuries, this court said:
The Court of Appeals of Alabama has, since the submission of the present case, decided a factual situation closely akin to the present controversy. In Sears, Roebuck & Co. v. Hamm, Ala.App., 81 So.2d 915, 918, that court said:
One of the text authorities cited in the foregoing case contains the following statement:
Taking the evidence most favorable to the plaintiff, as we are required to do, the testimony goes well beyond mere identification of defendant's name on the truck. The defendant regularly used trucks in making milk deliveries in the City of Birmingham. The plaintiff observed trucks on the premises of the defendant and during the trial examined a photograph of trucks belonging to the defendant. In both instances, the plaintiff identified a particular truck as being the same truck or identical to the truck involved in the accident. It is undisputed that the truck so identified was a part of the defendant's fleet. "Quite a few" of such trucks are owned by the defendant and are regularly used by it in making deliveries in downtown Birmingham. The plaintiff testified not only as to the name painted on the truck, but also as to its color, color of the lettering and the particular placement of defendant's name. The accident occurred at the entrance to a particular alley which is regularly used by the defendant in making its milk deliveries.
We conclude that the plaintiff's testimony was sufficient to establish prima facie that the truck was owned by the defendant and that an administrative presumption of agency was raised.
The appellant insists that the evidence shows that the injury complained of was not inflicted by the driver of the truck but by a negro helper. The company's position is that the presumption of agency may not be extended to a "mere occupant" of the vehicle.
According to plaintiff's testimony, the injury complained of was occasioned by the operation of the rear door of the truck and not by the movement of the vehicle itself. The evidence does not disclose whether the alleged servant of the defendant was the driver of the truck—although the plaintiff seems to have proceeded throughout the trial on the theory that the servant actually inflicting the injury was merely a helper. There is evidence that when the truck came to a stop, the helper dismounted from the cab of the truck and proceeded to the rear and opened the door in such a manner that it struck the plaintiff in the head.
Negro helpers are employed by the defendant on its trucks and the practices carried out at the scene of the accident were consistent with the defendant's normal operations in the area—with the exception of the fact that on this particular occasion the door was opened in such a manner as to obstruct a part of the sidewalk and cause plaintiff's injury.
We are of the opinion that the same logic and policy considerations which give rise to a presumption of agency in the driver of a vehicle injuring a person because of the movement of a vehicle, are applicable to the alleged servant in the present case, who, under the circumstances disclosed by the evidence, was in control of the rear door of the truck at the time plaintiff was injured. We conclude that the administrative presumption was equally applicable to the helper who was shown to be in control of the unloading operation.
As to the nature and effect of such administrative presumption, this court in Tullis v. Blue, 216 Ala. 577, 578, 114 So. 185, 187, stated the following:
The administrative presumption as to ownership and agency is rebuttable, and if the evidence is strong, clear and undisputed that the operator of the vehicle was not the owner's servant, agent or employee, acting within the line and scope of his employment, the defendant is entitled to the general affirmative charge with hypothesis when requested in writing. Cox v. Roberts, 248 Ala. 372, 27 So.2d 617.
The evidence which the defendant introduced in this regard was furnished by the drivers and helpers of two of his fleet of trucks which make regular deliveries in the vicinity of the locus of the accident, and by the defendant's sales manager. Their testimony was to the effect that they were not involved in any such accident as the plaintiff described, and to other facts which tended to indicate that it was improbable that any other of defendant's trucks were present in this particular alleyway at the time of the accident. Testimony, of a negative character, was also given by other witnesses who were in the general vicinity, but not at the scene of the accident at the time it occurred, to the effect that they had no knowledge of such an occurrence.
While the evidence adduced by the defendant at the trial tends to show that it was improbable that its trucks or servants were involved in the accident, there was no positive evidence of such. Nor was the defendant's evidence "strong and clear" to that effect. Therefore, the questions of ownership and agency were properly submitted to the jury for its determination. The jury is the proper trier of such disputed facts and inferences to be drawn therefrom. It is not the province of this court to usurp the jury's function and indulge in our own speculations and inferences from disputed evidence. We cannot say that the verdict rendered thereon was contrary to the great weight of evidence.
Appellant's assignments of error 39, 42, 43, and 45, assert that the trial court committed error in permitting hypothetical questions to be asked of appellees' expert medical witness. Appellant's contention of error is based on the theory that these hypothetical questions assume facts which were not in evidence. Counsel for appellant made timely objection to the questions and one of his grounds of objection was that the questions were predicated on facts not in evidence. However, to put the trial court in error, it is necessary that the objections to hypothetical questions point out definitely and specifically the vice inherent in the question. Although appellant's counsel generally stated his grounds of objection, he failed to point out to the trial court in what particular these questions
It is also contended that the following argument made to the jury by counsel for the plaintiff was error:
Traditionally, considerable latitude is allowed counsel in arguing the evidence and the reasonable inferences to be drawn therefrom. Trial courts will not be put in error in this particular unless there was a clear abuse of discretion, and the argument objected to was of such a character that it could not be eradicated from the minds of the jury by proper instruction.
Illustrative of the above rule is the case of Brown v. Johnston Brothers, 135 Ala. 608, 33 So. 683, 684. This was an action on a promissory note, wherein it was argued by counsel for the plaintiff concerning pleas of defendant including one of non est factum," "`If these pleas be true, then they charge the plaintiffs with forgery.'" It was argued on appeal that the remarks were manifestly improper and should have been excluded on the objection made by the defendant that the pleas did not charge the plaintiffs with forgery, nor was it necessary to charge them with forgery to avoid liability. This court held:
We cannot say that the trial court abused its discretion in failing to sustain objections to the quoted portion of counsel's argument in this cause.
We have given careful consideration to the remaining assignments of error urged on appeal and conclude that none of them would justify a reversal of the jury's verdict and the court's judgment thereon. Accordingly, each of the judgments of the lower court is due to be, and is hereby, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
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