Barnes v. Haney, 2 Div. 486

• Decision Date: 25 August 1966
• Docket Number: 2 Div. 486
• Citation: 189 So.2d 779,280 Ala. 39
• Parties: Rhett G. BARNES, Jr. v. Thomas B. HANEY.
• Court: Alabama Supreme Court

Page 779

189 So.2d 779

280 Ala. 39

Rhett G. BARNES, Jr. v. Thomas B. HANEY.

2 Div. 486.

Supreme Court of Alabama.

Aug. 25, 1966.

Clement, Rosen, Hubbard & Waldrop, and Robt. B. Harwood, Jr., Tuscaloosa, and Nathan G. Watkins, York, for appellant.

Pruitt & Pruitt, Livingston, for appellee.

MERRILL, Justice.

Plaintiff-appellant sued defendant-appellee for damages on account of injuries sustained in a hunting accident. Count 1 of the complaint charged simple negligence and Count 2 charged wantonness. The verdict and judgment were for the defendant and plaintiff appealed.

Appellant's first argued assignment of error is that the court erred in giving the following requested written Charge No. 8 at the request of the appellee:

'I charge you, Gentlemen of the Jury, that the injury sustained by the Plaintiff, does not of itself give Plaintiff a right of recovery. To enable Plaintiff to recover in this case, he must show that the Defendant was guilty of a breach of some duty to him and that, as a proximate result thereof, the Defendant sustained said injury. If you believe from the evidence as submitted, that the Defendant was not guilty of a breach of any duty owed to the Plaintiff, but that the injury sustained by the Plaintiff was the result of an accident or misadventure, then the Plaintiff cannot recover of the Defendant in this case.'

Appellant argues that the use of the words 'accident or misadventure' was so necessarily misleading that the error could not have been cured by an explanatory charge, as distinguished from those having a tendency to mislead. See Russell v. Thomas, 278 Ala. 400, 178 So.2d 556(4). We cannot agree.

The same charge was held to be 'a good charge' in McNeil v. Munson Steamship Line, 8 Ala.App. 610, 62 So. 459. (The case was reversed by this court, 184 Ala. 420, 63 So. 992, on other questions.) It is obvious that the charge could have been refused on the use of 'believe' instead of 'reasonably satisfied' in the third sentence, but under the uniform rulings of this court, reversible error will not be predicated on the giving or refusal of such charges. St. Louis-San Francisco R. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433(6), and cases there cited; Marigold Coal, Inc. v. Thames, 274 Ala. 421, 149 So.2d 276. We have also held that neither the giving or refusal of 'unavoidable accident' or 'mere accident' charges constitutes reversible error, but the better practice is to refuse them. Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277. We hold that the charge had, at most, only a tendency to mislead, and there was no reversible error in giving it.

The next argument charges error in the giving of Charge No. 30 at the request of the defendant:

'I charge you, Gentlemen of the Jury, that the burden of proof is on the Plaintiff in this case, to reasonably satisfy your minds from the evidence of the truth of the material allegations of each count of the complaint, and I charge you, that unless the Plaintiff has met that burden, you cannot return a verdict in favor of the Plaintiff and against the Defendant on either of counts of said complaint.'

The error here was that the charge read 'each count of the complaint,' when in fact the second count of the complaint, which charged wantonness, had already been disposed of because the trial court gave the affirmative charge with hypothesis as to Count 2 of the complaint.

Appellant contends that this charge also was a necessarily misleading charge and that it was reversible error to give it. Again, we cannot agree.

The word 'each was surplusage, but the charge was still a good charge as a matter of law. The trial court made it clear in the oral charge that the only burden on the plaintiff was to prove simple negligence under Count 1 of the complaint. This is a good example of where an explanatory charge could have been requested if appellant had been dissatisfied with the charge. Even so, we are convinced from the reading of the oral charge that the jury knew that Count 1 was the only count involved and could not have been misled by the giving of Charge No. 30.

The final argued assignment of error is that the court erred in giving the affirmative charge with hypothesis as to Count 2 which charged wantonness. Appellant contends that 'in the instant case there was at least a scintilla of evidence which would support the inference that at the time the Appellee shot Appellant, the Appellee had knowledge that the Appellant, though not seen, was likely to be in a position of danger, and with a conscious disregard of this appreciated danger, the Appellant proceeded to discharge his shotgun.'

We state the evidence in its most favorable light to the plaintiff. He and appellee were friends, living on opposite sides of the same street about a block apart in York, Alabama. Appellee invited him to go bird hunting with him and they went hunting together on February 9, 1964. The appellee selected a hunting area with which he was intimately familiar but which the appellant had never been to before. After they had hunted over a fairly extended area, the appellant and the appellee were proceeding through a briar patch when the appellant stopped to tie his boot at a time when the appellee was standing directly beside him. At this time the appellee moved on forward in the general direction in which the two of them had been proceeding without ever looking back again. Appellee swung on off to his right to follow a path that led parallel to the bank of the creek at the scene and after the appellant finished tying his shoe, he followed along after the appellee and caught sight of him moving along ahead. After the appellant sighted the appellee up ahead of him, he began to move toward the general...