Bahakel v. Great Southern Trucking Co.

• Citation: 31 So.2d 75,249 Ala. 363
• Decision Date: 08 May 1947
• Docket Number: 6 Div. 444,6 Div. 445.
• Parties: BAHAKEL et al. v. GREAT SOUTHERN TRUCKING CO.
• Court: Supreme Court of Alabama

31 So.2d 75

249 Ala. 363

BAHAKEL et al. v. GREAT SOUTHERN TRUCKING CO.

6 Div. 444, 6 Div. 445.

Supreme Court of Alabama

May 8, 1947

Rehearing Denied June 30, 1947.

Hugh A. Locke and Wade H. Morton, both of Birmingham, for appellants.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellee.

LIVINGSTON Justice.

The appeal is from separate judgments rendered in two cases arising out of the same transaction, which were consolidated and tried together.

The claims adjudicated arose out of the collision of two trucks on highway 241, commonly called the 'Florida Short Route,' some five or six miles northward from Phenix City, Alabama. One of the trucks was owned by William Bahakel, and the other by the Great Southern Trucking Company. The Bahakel truck was being operated by Louis Bahakel and was headed northward, while the Great Southern truck was being operated by one Etheridge and was headed southward. Louis Bahakel sued the Great Southern Trucking Company claiming damages for personal injuries and loss of time from his work. William Bahakel sued the Great Southern Trucking Company to recover damage done to his truck and to the cargo of produce being carried thereon. The Great Southern Trucking Company sued William Bahakel to recover damage done to its truck.

The three separate suits were filed in the Circuit Court of Jefferson County, Alabama. On motion of the Great Southern Trucking Company, the three suits were consolidated and tried together. The trial resulted in separate verdicts and judgments in favor of the Great Southern Trucking Company in the separate suits brought against it by Louis Bahakel and William Bahakel, and a verdict and judgment in favor of William Bahakel in the suit brought by the Great Southern Trucking Company against him. Louis Bahakel and William Bahakel filed separate motions for new trials, and upon said motions being overruled they appealed. The Great Southern Trucking Company did not appeal from the judgment against it in its suit against William Bahakel.

The only question presented for review is the giving of certain charges at the written request of the Great Southern Trucking Company, and the trial court's action in overruling the motions of Louis Bahakel and William Bahakel for new trials.

The collision between the two trucks occurred about five o'clock in the morning on July 1st, 'about daylight' or just before. The highway was straight or practically so for some distance in both directions from the place where the trucks collided. The Bahakel truck was ascending a slight grade. The morning was foggy and both trucks were burning lights. There is some testimony to the effect that the fog was light in the high places and thick in the low places. Both drivers testified that the truck driven by him was on the right side of the center line of the highway in the direction in which he was driving, and that the truck of the other driver was also on that side by some two or three feet. The trucks, in effect, sideswiped each other.

Clearly enough the evidence presented a jury question as to which driver was at fault, and no contention to the contrary is here made.

Appellants contend that the giving of the following written charge for the appellee constitutes reversible error: '8. If you believe the evidence in this case and are reasonably satisfied therefrom that Louis Bahakel has wrongfully sworn falsely as to any material fact in this case, you may in your discretion disregard his entire testimony, both on that issue and every other issue in the case.' The well settled rule is that before a jury is authorized to disregard the testimony of a witness upon the principle of 'falsus in uno, falsus in omnibus,' it must appear that the testimony so given was willfully false, and that it relates to material matters. Grigsby v. State, 19 Ala.App. 661, 100 So. 82; Montgomery v. State, 17 Ala.App. 469, 86 So. 132; Pinkerton v. State, 246 Ala. 540, 22 So.2d 113; Storey v. State, 14 Ala.App 127, 72 So. 267; Patton v. State, 156 Ala. 23, 46 So. 862; Bouie v. State, 12 Ala.App. 33, 67 So. 619; Fancher v. State, 217 Ala. 700, 117 So. 423; Elliott v. State, 19 Ala.App. 263, 97 So. 115; Thomasson v. State, 21 Ala.App. 562, 110 So. 563 certiorari denied 215 Ala. 315, 110 So. 564.

We have carefully examined all the cases cited by appellants to support their argument for a reversal, together with other cases not cited. Many, if not all of them, involve charges in which the word 'willfully' is omitted. Such omission renders the charge subject to the interpretation that an innocent or unintentional laps on the part of a witness subjects his testimony to the rule. A charge omitting the word 'willfully' is obviously bad, and many of our cases are to the effect that the refusal by the trial court to give such a charge is not erroneous. In Pinkerton v. State, supra, in applying the rule, we held that the omission of the word 'willfully' in the court's oral charge constituted reversible error, and, further, that under the circumstances of that case it was not incumbent upon the defendant to ask for an explanatory charge.

In the instant case, in charge eight quoted above, the word 'wrongfully' is used instead of the word 'willfully,' the charge being otherwise proper. As used in charge eight, 'has wrongfully sworn falsely,' is subject to the interpretation that the witness has sworn falsely through innocence, ignorance, inadvertence, or by mistake. On the other hand, it is subject to the interpretation that the witness has knowingly and intentionally sworn falsely. Under Supreme Court Rule 45, Code 1940, Tit. 7 Appendix, judgments may not be reversed on the ground of giving or refusing special charges, unless in the opinion of the Court, after an examination of the entire cause, it should appear that the giving or refusing of such charge has propably injuriously affected substantial rights of the parties. While we are not to be understood as approving charge eight, supra, we do not think that its being given injuriously affected the substantial rights of appellants. Any doubts in the minds of the jury could have been easily dispelled by requesting an explanatory charge.

Appellee's given written charge seven is as follows: 'The court charges you that if any individual juror is not reasonably satisfied of the plaintiff's right to recover, you cannot find a verdict for the plaintiff.'

It is first insisted that charge seven directs a verdict for the defendant 'if any individual juror is not reasonably satisfied of the plaintiff's right to recover.' But such is not the import of the charge. The charge might warrant a mistrial in the event one or more jurors cannot find for the plaintiff, but does not direct a verdict for the defendant in that event. Asbury v. Mountz, 234 Ala 553, 176 So. 282. It is further insisted that charge seven fails to hypothesize the evidence. Such a contention was disposed of in Hall v. Posey, 79 Ala. 84, 90, as follows: ...