Alabama Power Co. v. Taylor

• Citation: 306 So.2d 236,293 Ala. 484
• Parties: , 91 A.L.R.3d 595 ALABAMA POWER COMPANY v. Ivy LaDonna TAYLOR, a minor, etc. SC 783.
• Decision Date: 09 January 1975
• Court: Supreme Court of Alabama

Page 236

306 So.2d 236

293 Ala. 484, 91 A.L.R.3d 595

ALABAMA POWER COMPANY v. Ivy LaDonna TAYLOR, a minor, etc.

SC 783.

Supreme Court of Alabama.

Jan. 9, 1975.

Balch, Bingham, Baker, Hawthorne, Williams & Ward, James O. Spencer, Jr., Birmingham, and J. B. Blackburn, Bay Minette, for appellant.

Cunningham, Bounds & Byrd, Mobile, for appellee.

BLOODWORTH, Justice.

This is an appeal by defendant Alabama Power Company from a judgment and jury verdict of $200,000 for personal injuries, rendered in favor of Ivy LaDonna Taylor, a minor, ten years of age, who sues by and through her mother and next friend, Cherry Ann McCormick. Mrs. McCormick also brought a derivative suit to recover nedical expenses incurred on behalf of her daughter. See SC 755, Cherry Ann McCormick v. Alabama Power Company, wherein on Mrs. McCormick's appeal from trial court's judgment reducing the jury verdict in her favor, the judgment is reversed. (1975), 293 Ala. 481, 306 So.2d 233.

The complaint is in five counts. The first four counts charge in essence that Alabama Power Company negligently caused or allowed or maintained uninsulated high-voltage power lines or negligently failed to insulate high-voltage power lines, in that said lines were allowed to be in or dangerously near a tree which, by the exercise of reasonable care, it should have known was frequently climbed by children and that as a proximate result of defendant's negligence, plaintiff was injured and damaged by coming in contact with said lines. Count five charges wantonness in the maintenance of the uninsulated wires.

At the conclusion of the evidence, both parties moved for directed verdicts. The trial judge granted Alabama Power's motion for a directed verdict as to the wanton count and granted plaintiff's motion for a directed verdict as to all four negligence counts. After instructions from the court, the jury retired and assessed LaDonna's damages at $200,000. Following the jury verdict and judgment thereon, Alabama Power Company moved for a new trial, or, in the alternative, for judgment notwithstanding the verdict. When the motion was overruled, this appeal then ensued.

Alabama Power Company's arguments on appeal are directed to three grounds of its motion for new trial.

I

Prior to trial, Alabama Power Company took the deposition of one Robert L. Jenkins, a consulting engineer and resident of Baldwin County. At the taking of this deposition, each party was represented by counsel and each had the opportunity to examine the witness. Mr. Jenkins was subpoenaed for the trial but failed to appear. Initially, the trial judge indicated that Jenkins' deposition would not be admitted in evidence as part of the plaintiff's case in chief. On the following day, however, the court changed its ruling and the deposition was admitted. (Mr. Jenkins was then either in Birmingham or Atlanta.) Alabama Power Company vigorously objected to the use of the deposition and moved for a continuance until such time as Mr. Jenkins could be available. The trial judge's denial of the continuance is assigned as error.

Rule 32(a)(3)(B), Alabama Rules of Civil Procedure, makes the deposition of a nonparty witness admissible against any party represented at the taking thereof for any purpose when '* * * the witness is at a greater distance than 100 miles from the place of trial * * * unless it appears that the absence of the witness was procured by the party offering the depositions.'

It is not disputed that the witness Jenkins was more than 100 miles from the place of trial when the deposition was offered. Alabama Power Company had the opportunity to examine him when he was deposed. No contention is made that the witness' absence was procured by the plaintiff. Therefore, it is clear that under Rule 32(a)(3)(B), Alabama Rules of Civil Procedure, the deposition was admissible. As we perceive it, the very purpose of the rule is to prevent the need for a continuance.

As this Court has heretofore written:

'We have repeatedly held that a motion to postpone a trial is addressed to the sound judicial discretion of the trial court and its refusal to allow a continuance is not reviewable here except for gross abuse. (Citations omitted.)' Arant v. Grier, 286 Ala. 263, 239 So.2d 188 (1970).

Alabama Power Company made no showing that the witness would testify differently, or as to other facts, if he testified in person. We do not find that the trial judge abused his discretion in this case. To the contrary, we believe he was justified in proceeding with trial and allowing the deposition of the witness to be used.

II

After the jury had been deliberating on the issue of damages some period of time, the following occurred:

'REPORTER'S NOTE: The jury * * * returned to the Court room to ask a question.

'THE COURT: Ladies and gentlemen of the jury, I just asked the Bailiff to bring you in to see if there was any question I might could answer that might help you. You have been out an hour and a half. Who is the foreman?

'REPORTER'S NOTE: A juror holds up hand.

'THE COURT: Do you have a question?

'FOREMAN: They would like to know if the figure we arrive at will be the total figure, or if there will be some expense. Do we have to figure this sum or do we consider the sum we arrive at will not be the total amount arrived at for the child. Can we get this sort of answer?

'THE COURT: I don't know this is something for you to consider, but you know the Lawyers will have to be paid.

'A JUROR: There is some question and we thought it might help reach a decision.

'THE COURT: That is all I can tell you--that the Lawyers will have to be paid. I am going to give you a little while--we have spent two days on the case and I would like to conclude it if we can.

'THE JURY RETURNS TO CONTINUE DELIBERATION--'

In a personal injury action, the plaintiff's attorneys' fees are not part of plaintiff's legal damages. Clark v. Exchange Ins. Ass'n, 276 Ala. 334, 161 So.2d 817 (1964). Therefore, Alabama Power assigns as error the giving of this 'instruction' and contends that it resulted in an excessive verdict.

It will be noted from the record that Alabama Power Company did not object to the giving of this 'instruction' and, therefore, Rule 51, Alabama Rules of Civil Procedure applies. It is, in pertinent part, viz.:

'* * * No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. * * *'

Having failed to object, appellant cannot now complain. Stated simply, this Court reviews 'rulings' made by the court below. In such an instance as here, when a party fails to object, and thereby invoke the ruling of the trial court, nothing is preserved for our review.

At oral argument, Alabama Power Company, in order to excuse its failure to object, alluded to Rule 46, Alabama Rules of Civil Procedure, which provides:

'Formal Exceptions ro rulings or orders of the court are unnecessary; but for all purposes for which an Exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his Objection to the action of the court and his grounds therefor; and, if a party has no opportunity to Object to a ruling or order at the time it is made, the absence of an Objection does not thereafter prejudice him.' (Emphasis supplied.)

This rule merely abolishes the need for formal 'exceptions' while reiterating the need for an 'objection.' Only if a party has no opportunity to object, does the rule excuse the absence thereof. Alabama Power Company does not contend in brief, nor did it contend at oral argument, that it had no opportunity to object. Thus, we conclude there is no reversible error in the assignment of error directed to the trial court's remark as to attorney's fees.

III

Finally, Alabama Power Company argues that the giving of the directed verdict for plaintiff on the negligence counts was erroneous in three respects: (1) That since plaintiff had the burden of proof, the trial judge should have hypothesized his direction to the jury to return a verdict for plaintiff on the jury's belief of the evidence, citing McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756 (1957); (2) That there was a scintilla of evidence from which the jury could have found that Alabama Power Company was not negligent; (3) That there was a scintilla of evidence from which the jury could have found that the minor plaintiff was guilty of contributory negligence. We will speak to each of these arguments in detail.

(1)

Rule 50(a), Alabama Rules of Civil Procedure, provides inter alia:

'* * * The order of the court granting a motion for a directed verdict is effective without any assent of the jury.'

Rule 50(e), Alabama Rules of Civil Procedure, provides:

'* * * The demurrer to the evidence, the motion to exclude the evidence, and the Affirmative charge with or Without hypothesis, are hereby abolished. The court may direct a verdict, or enter judgment in accordance with the motion for directed verdict, or enter judgment notwithstanding the verdict under this rule, Whether or not the party making the motion has the burden of proof, in accordance with the scintilla evidence rule.' (Emphasis supplied.)

Thus, the former procedure of giving an affirmative charge with hypothesis has been abolished. If a trial judge decides there is not a scintilla of evidence upon which the jury could reasonably reach a verdict for a defendant, he can direct the verdict without submitting the credibility of the witnesses to the jury if their testimony is uncontradicted and unimpeached. In such case the direction of the verdict is effective without the assent of the jury.

An excellent...