I concur in the interpretation of the Alabama Motor Carrier Act of 1939 [Supplement Code 1940, Tit. 48, § 301, Subsection 16], as not authorizing a joint action against the motor carrier and the insurance carrier on claims for damages for personal injury caused by the negligence of the carrier or its servants in the operation of the motor carrier's vehicle.
My concurrence, however, is registered with some reluctance for the reason that the policy engages, "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of service caused of bodily injury, including death at any time resulting therefrom sustained by any person or persons caused by accident and arising out of ownership, maintenance or use of the automobile." And for the further reason that the provisions in the act restricting liability to pay, "any final judgment recovered against such motor carrier," is embodied in the act under the heading, "Security for the protection of the public." The provision as a whole is clearly for the benefit of the insurance carrier and contemplates the prosecution of two successive actions by the members of the public suffering injury before justice can be done. This at best is a doubtful "security for the protection of the public." The purpose of such restriction, no doubt, was embodied in the act so as to enable the insurance carrier to defend under cover without disclosing its identity to the court and jury. Nevertheless, in the face of the provision of the act making such insurance essential to the issuance of *Page 408 a permit to the motor carrier to operate on the public highways, it is a matter of common knowledge that such carriers are insured against liability and juries may take note of this fact without evidence. We quote: "That courts will take judicial notice of what everybody else is presumed to know, and juries are permitted to find such fact, without specific proof being adduced in its support. Wall v. State, 78 Ala. 417; Adler v. State, 55 Ala. 16. Ib." Mayfield's Digest of Alabama Decisions, p. 437(a) 3.
I do not concur in the reversal of the judgment as to either of the parties. The question of misjoinder of parties was raised by a joint demurrer to the complaint by both parties. The judgment is a joint judgment and the appeal is a joint appeal. The assignments of error are joint and the case was submitted without an order giving the appellants leave to sever in the assignments of error. Under the rule of our decisions for more than a half century, it is settled that unless the errors so assigned prejudice the rights of both parties, they cannot be sustained. Alabama Digest, vol. 2, Appeal and Error, pp. 620-627, 713(1) to 721(1).
Moreover, the appeal is on an abridged record which recites: "The evidence with reference to the occasion of the injury is not set out in the bill of exceptions for the reason that all the points on appeal are confined to the right of the plaintiff to sue upon the said insurance policy introduced in evidence." The burden was on each of the appellants to show error and injury. In treating the assignments of error as separate and not joint, there was nothing here to show that the appellant Baggett was prejudiced by the judgment. In fact his liability is not questioned nor is the amount recovered questioned as excessive. The reversal, if at all, should be limited to the appellant Highway Insurance Underwriters. Southern Ry. Co. v. Harris, 207 Ala. 534, 93 So. 470; Young v. Woodward Iron Co.,216 Ala. 330, 113 So. 223; Woodfin et al. v. Curry, 228 Ala. 436,438, 153 So. 620; Tullis v. Blue, 216 Ala. 577,114 So. 185.
The liability of the motor carrier not being questioned and there being no question as to the amount of the recovery, and the recovery being within the limits of the obligation of the policy, the record when considered as a whole, fails to show prejudice from the ruling of the court on the demurrer to the complaint as to either of the appellants.
I, therefore, respectfully dissent from the conclusion as to the reversal of the judgment.
I am authorized to state that Mr. Justice THOMAS concurs in the foregoing.