McKinley v. Campbell

115 So. 98, 217 Ala. 139, 1927 Ala. LEXIS 374

• Court: Supreme Court of Alabama
• Decided: October 13, 1927
• Docket: 6 Div. 814.
• Status: Published

Opinions

SOMERVILLE, J.

This is an action for damages growing out of an. automobile collision.

The defendants in the original complaint were D. E. McKinley & Bro., a partnership, D. -E. McKinley & Bro., a corporation, D. R. McKinley, doing business as D. E. McKinley & Bro., and D. R. McKinley, individually. By amendment, D. E. McKinley & Bro., a corporation, was stricken from the complaint.

The complaint claims damages of “the defendant,” avers that plaintiff’s automobile was struck, etc., by the automobile truck of the defendant, and avers, fprther, that the injuries and. damage suffered were caused “by the negligence of the defendant, or a servant, agent, or employee of the defendant, acting within the line and scope of his authority and employment as such.” There is no reference anywhere to “defendants.”

In Central of Georgia Ry. Co. v. Carlock, 196 Ala. 659, 661, 72 So. 261, 262, passing upon the sufficiency of a similar complaint, this court said;

“It was imperative that the pleader, make certain, at least to a common intent, in whose services, of the two defendants, the derelict agent or servant was when he committed the wrong- for which recovery was sought. The count, as phrased, left entirely uncertain in whose service, of the two defendants, the dere ■lict agent or servant was engaged when the wrong alleged was inflicted upon the plaintiff. In this state of the averments of the count, no other conclusion is possible under our authorities than that the count failed to state a ‘valid’ cause of action; and, being so completely ineffectual, no valid judgment could be predicated of the count. Osborne v. Cooper, 113 Ala. 405, 21 So. 320, 59 Am. St. Rep. 117; L. & N. R. R. Co. v. Duncan & Orr, 137 Ala. 446, 453, 455, 34 So. 988, and decisions therein cited.”

The Carlock Case was afterwards followed in Corona Coal Co. v. Huckelbey, 204 Ala. 508, 86 So. 25.

The instant case is clearly governed by those decisions, from which, under the rule of stare decisis, we do not venture to depart. The demurrer to the count should have been sustained, and was erron&ously overruled.

The trial judge was in error in denying to one of defendants’ counsel the right to make objections to evidence offered by plaintiff. The fact that an associate counsel was or had been conducting the examination of witnesses on behalf of defendants furnished no reason for such a denial. Parties have a constitutional right to be heard by counsel (Ala. Constitution of 1901, § 10), and this right cannot be restricted to representation by a single individual. The Legislature and the court itself may of course impose reasonable regulations upon the cumulative functioning of counsel in the conduct of a trial, hut cannot properly suppress the timely and appropriate action of any individual counsel acting alone — without duplication — in the particular matter.

Several other matters complained of will scarcely recur on another trial, and need not be noticed.

Eor the errors noted, the judgment will be reversed and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur. .