Beavers v. Boykin, 6 Div. 676

• Court: Supreme Court of Alabama
• Writing for the Court: SIMPSON
• Citation: 142 So.2d 10,273 Ala. 413
• Parties: Eldridge BEAVERS, as Administrator, etc. v. Ural BOYKIN.
• Docket Number: 6 Div. 676
• Decision Date: 10 May 1962

Page 10

142 So.2d 10 273 Ala. 413 Eldridge BEAVERS, as Administrator, etc.
v.
Ural BOYKIN. 6 Div. 676. Supreme Court of Alabama. May 10, 1962.
Rehearing Denied June 14, 1962.

[273 Ala. 414] D. G. Ewing, Birmingham, for appellant.

London, Yancey, Clark & Allen and Bibb Allen, Birmingham, for appellee.

SIMPSON, Justice.

Appellant brought suit against appellee for damages sustained by appellant's intestate (Elzetta Kidd) as a result of a collision between an automobile owned and operated by one Louis Davis and the automobile of appellee, which was being operated by his agent or employee, and in which appellant's intestate was riding as a guest of appellee. The case was submitted to the jury on the complaint, as amended, which charged appellee with wanton misconduct, in that his agent or employee, while acting within the line and scope of his employment as such agent or employee wantonly injured appellant's intestate by wantonly driving the automobile of appellee upon or against the automobile of one Davis.

Page 11

The jury returned a verdict in favor of appellee and the trial court rendered judgment on such verdict. From this judgment, this appeal is taken.

Appellant assigns as error the refusal of the trial court to give the following written charge requested by appellant:

'1. The court charges the jury that if you are reasonably satisfied from the evidence in this case that any witness in this case has wilfully or intentionally sworn falsely as to any material fact in this case, you are authorized in your sound discretion to disregard and ignore the entire testimony of that witness.'

It is axiomatic that a case will not be reversed on the refusal of a requested charge where the same principle of law is substantially covered in the court's oral charge. Such a refusal must be found, after an examination of the entire cause, to have probably injuriously affected the substantial rights of the parties. Title 7, § 273, Code 1940; Helms v. State, 254 Ala. 14, 47 So.2d 276; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So.2d 75.

Here the court charged as follows:

'Now gentlemen, it is the duty of the jury to attempt to reconcile the testimony of all the witnesses in the case, as to make them all speak the truth, if that can be done reasonably. Now, if [273 Ala. 415] that cannot be done, if some of the testimony is one way and some another and is in irreconcilable conflict, then it is for the jury to weight that testimony and determine where...