Ashley v. McMurray, 8 Div. 217.

Citation130 So. 401,222 Ala. 32
Decision Date09 October 1930
Docket Number8 Div. 217.
PartiesASHLEY v. MCMURRAY.
CourtSupreme Court of Alabama

Rehearing Denied Nov. 6, 1930.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Action for personal injuries and property damage by Naomi McMurray against Charles Ashley. From a judgment for plaintiff defendant appeals.

Transferred from Court of Appeals.

Affirmed.

Jas. C Roberts, of Florence, for appellant.

Bradshaw & Barnett, of Florence, for appellee.

FOSTER J.

This in an action for damages claimed to be the result of the negligence and wantonness of appellant's son in operating a car of the former in causing a collision of it with one owned and operated by plaintiff. Defendant was riding in the car at the time. Defendant's plea 2 set up contributory negligence of plaintiff. Plea 3 set up the same facts in recoupment. To plea 3 plaintiff replied specially again alleging defendant's negligence. The verdict was for plaintiff awarding damages to her.

Whether in such an action defendant may properly claim damages in a plea of recoupment, not thereby admitting his own wrong, as charged in the complaint, was left an open question in the case of Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215. But in that case, as in this, there was a plea of contributory negligence which involved the same issue as that alleged in the plea of recoupment, and the verdict was for plaintiff. The verdict necessarily determined that issue in favor of plaintiff, and therefore appellant could not be prejudiced by the ruling of the court on the sufficiency of the replication to the plea of recoupment. The state of this record does not require us to determine the question left unsettled, and as to which there was a difference of opinion in this court.

Questions were propounded to witnesses by plaintiff, over general objections, calling for evidence that there was a smell of whisky, and that defendant appeared to be drunk, and whisky was seen out there. The court properly overruled the objections. There was no specific ground of objection assigned. If any of such questions were improper for any reason, the attention of the court was not directed specially to such reason. Many of the other questions propounded to witnesses referred to in the assignments of error were not answered in a manner prejudicial to appellant.

We do not find in the bill of exceptions any reversible error, though all the assignments do not appear to require special treatment, but have received out careful attention.

There is no exception to the ruling on the motion for new trial shown in the bill of exceptions (nor elsewhere as to that) and therefore we cannot review such ruling. Southern Wood Preserving Co. v. McCamey, 218 Ala. 201, 118...

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10 cases
  • Southern Ry. Co. v. Miller, 6 Div. 306.
    • United States
    • Supreme Court of Alabama
    • March 23, 1933
    ...... Ala. 384, 118 So. 565; Seaboard Air Line Rwy. Co. v. Johnson, 217 Ala. 251, 115 So. 168. . . As to. the duty devolving on the ...805; Southern Railway. v. Jones, 21 Ala. App. 547, 109 So. 894; Ashley v. McMurray, 222 Ala. 32, 130 So. 401; Godfrey v. Vinson, 215 Ala. 166, ......
  • McGough Bakeries Corp. v. Reynolds, 6 Div. 572.
    • United States
    • Supreme Court of Alabama
    • April 29, 1948
    ...... favor under their Plea 8 setting up the contributory. negligence of the plaintiff. . . ...Berry, 223 Ala. 111, 134 So. 868; Id., 223 Ala. 109, 134 So. 870; Ashley. v. McMurray, 222 Ala. 32, 130 So. 401; Watts v. Montgomery Traction ......
  • Crocker v. Lee, 1 Div. 598
    • United States
    • Supreme Court of Alabama
    • August 30, 1954
    ...contributory negligence is no defense to such a charge. Garth v. North Alabama Traction Co., 148 Ala. 96, 42 So. 627; Ashley v. McMurray, 222 Ala. 32(9), 130 So. 401. Charges C, 10 and 11 violated this principle and were erroneously Charge 24 was faulty since the fact that the defendant was......
  • Central of Georgia Ry. Co. v. Bates, 7 Div. 109.
    • United States
    • Supreme Court of Alabama
    • October 13, 1932
    ...194, 45 So. 198, 127 Am. St. Rep. 25; Southern Ry. Co. v. Benefield, 172 Ala. 588, 55 So. 252, 35 L. R. A. (N. S.) 420; Ashley v. McMurray, 222 Ala. 32, 130 So. 401; Memphis & Charleston Railroad Co. v. Martin, Ala. 367, 382, 23 So. 231; Birmingham Railway & Electric Co. v. Bowers, 110 Ala.......
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