Alaga Coach Line, Inc. v. McCarroll

• Decision Date: 21 December 1933
• Docket Number: 4 Div. 743.
• Citation: 227 Ala. 686,151 So. 834
• Parties: ALAGA COACH LINE, Inc., v. McCARROLL.
• Court: Alabama Supreme Court

151 So. 834

227 Ala. 686

ALAGA COACH LINE, Inc., v. McCARROLL.

4 Div. 743.

Supreme Court of Alabama

December 21, 1933

Rehearing Denied Jan. 18, 1934.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Action for damages for personal injuries by Clayton McCarroll against the Alaga Coach Line, Inc. From a judgment for plaintiff, defendant appeals.

Affirmed.

Chauncey Sparks, of Eufaula, for appellant.

McDowell & McDowell, of Eufaula, for appellee.

KNIGHT Justice.

The appellant prosecutes this appeal from a judgment of the circuit court wherein a jury had awarded appellee, plaintiff in the court below, a verdict in the sum of $7,500, for personal injuries received by the plaintiff as a result of a collision, upon a public highway, between a truck driven by the plaintiff and a motorbus owned by the appellant, and operated at the time by one of its agents. The accident resulting in the alleged injury of the appellee was the same accident which gave rise to a suit recently decided by this court, and appearing in the report as Alaga Coach Line Inc., v. Foy, 150 So. 493. The pleading in the present case is similar to the pleading in the Foy Case, excepting of course, the name of the plaintiff, and the injuries catalogued.

In the Foy Case we held the complaint was sufficient, and not subject to any ground of demurrer directed to it. A reconsideration of the case, on this appeal, leaves us still convinced that the complaints in the Foy Case, and in the case now before the court, are not subject to any grounds of defendant's demurrer, and the court committed no error in overruling the same. There is certainly nothing in the holding in the case of Southern Railway Co. v Hanby, 166 Ala. 641, 52 So. 334, and the other cases cited by appellant which support its contention that the complaint is defective in the particulars indicated by it. Neither count of the complaint discloses two separate and distinct causes of action. The cause of action stated in each count is for simple negligence against the defendant, in the operation of its motorbus, by and through its agent, acting within the line and scope of his authority as such agent.

It is insisted that the court erred in overruling defendant's objection to the following question propounded on direct examination by the plaintiff to the witness Roberts "Would you say that track that you observed on the right hand side of the road coming from Eufaula and going towards the church were the tracks made by that Foy bread truck?" Just before this question was asked, this witness had testified: "I recall in August, 1931, where there was an automobile wreck near that White Oak Church. I visited the scene of that wreck. We drove up, a fellow Parks and me, and we stopped and looked around a little bit; the water hadn't quit running out of the radiator when we arrived,-out of the radiator of the wrecked car. That was McCarroll's car-the bread truck. It was the bread truck that he had been operating. No one was there at the time. I did not see the Dothan bus there, and there was no one else there. In other words, I just found this abandoned wrecked car. (The witness at this point is shown the map or diagram of the Eufaula and Abbeville road. He stated that he is familiar with this road and the position of the houses, church, etc., on said road near the scene of the accident). Mr. McCarroll lives down here (indicating). I did not see the Dothan bus. (Here the witness is handed the two toy automobiles and asked to place them in the position he found them when he arrived). The bread truck was just below this road here (indicating the position by placing the automobile). This is supposed to be the edge of the road, and this is the ditch (indicating). That position is something like I found it there. The wrecked car was just a few feet this side of that road leading into the church grounds. I traced the tracks from that wrecked car down the road towards Eufaula. You could tell very easily, it looked like there had been a rain; in fact, it was early in the morning and you could tell where this truck came up and dragged the left back wheel, I think it was. That track was coming from the direction of Abbeville. That track was on the left side of that road, coming towards Eufaula. I observed some tracks south of this point going up to the church. They were on the right of the road coming or going to Abbeville. I observed the track on the right hand side of the road going up towards the church. Those tracks led up to that wrecked car." It was then that the above objected to question was propounded to the witness Roberts.

This court has time and again held that a witness cannot be allowed to state his opinion that a certain shoe, or foot, could or would make a particular track, that being the very fact the jury are to determine. Busby v. State, 77 Ala. 66; Riley v. State, 88 Ala. 193, 7 So. 149; Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am. St. Rep. 145; Pope v. State, 174 Ala. 63, 57 So. 245. And in the case of Terry v. State, 118 Ala. 79, 23 So. 776, it was held that a witness should not be allowed to state that two particular tracks are the same.

While it is true that the witness Roberts was not present when the tracks inquired about were made, but he saw and observed the wrecked automobile, saw where it was standing, and it was open to him to see and observe the tracks leading up to the wheels of the standing car. It required but little effort, we take it, to be able to trace the tracks backward along the road. It was not a question as to correspondence or similarity of tracks, but was one of fact, open to the personal observation of the witness. We do not think the question falls within or is governed by the rule excluding opinion evidence "as to tracks." The question called for the statement of a fact which was open to the observation of the witness.

"The general rule is that witnesses must testify to facts, and are not permitted to express mere matters of opinion. The rule has its boundaries and exceptions, which are as well defined as the rule itself. Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if, from the nature of a particular fact, better evidence is not attainable, the opinion of a witness, derived from observation, is admissible." Mayberry v. State, 107 Ala. 67, 18 So. 219, 220; Whart. Ev. § 511; Lawson on Expert and Opinion Evidence, 460; Orr v. State, 225 Ala. 642, 144 So. 867. We hold that the court committed no error in overruling defendant's objection to said question.

It is also insisted that the court committed error to reversal in sustaining plaintiff's objection to the following question propounded by defendant on cross-examination to plaintiff's witness Clayton Leroy, "How much does he owe you?" The bill of exceptions recites that this witness was recalled and testified as follows on cross-examination: "I am engaged in the grocery business now. I have been running a store at Terese. I am not now. I was at the time of this accident. I think we can settle the matter of the plaintiff's indebtedness to me out of court. He does owe me some money." At this point the defendant asked the witness: "How much does he owe you?" The question, of course, was asked in order to show bias or interest on the part of the witness. It is always permissible to elicit any fact from a witness on cross-examination which would tend to show bias or partiality toward the party calling him to testify. Ex parte Ford, 213 Ala. 410, 104 So. 840; 1 Greenleaf on Evidence (16th Ed.) § 450; Louisville & N. R. R. Co. v. Tegner, 125 Ala. 593, 28 So. 510; Alabama G. S. R. R. Co. v. Johnston, 128 Ala. 284, 29 So. 771.

However this witness had already testified that the plaintiff owed him, and the bill of exceptions fails to disclose that the appellant informed the court what sum of money he proposed to show the...