Bentley v. Lawson

• Decision Date: 27 October 1966
• Docket Number: Nos. 6,6 Div. 147,s. 6
• Citation: 280 Ala. 220,191 So.2d 372
• Parties: Betty H. BENTLEY v. Gary Charles LAWSON, Pro Ami. Betty H. BENTLEY v. Charles E. LAWSON. Div. 147,-A.
• Court: Alabama Supreme Court

Page 372

191 So.2d 372

280 Ala. 220

Betty H. BENTLEY v. Gary Charles LAWSON, Pro Ami.

Betty H. BENTLEY v. Charles E. LAWSON.

Nos. 6 Div. 147, 6 Div. 147-A.

Supreme Court of Alabama.

Oct. 27, 1966.

Porterfield & Scholl, Birmingham, for appellant.

Higgins, Windham, Perdue & Johnson, Birmingham, for appellees.

COLEMAN, Justice.

A three-year-old boy was struck by defendant's automobile in a street near an intersection. He sues for his injury and his father sues for medical expenses and loss of services. From judgment for plaintiff in each case, defendant appeals.

The cases were consolidated on trial and on appeal. The issues are the same in both cases except as to Assignment 25. In connection with this appeal, see: Lawson v. Swift, 6 Div. 191, and Lawson v. Swift, 6 Div. 191--A, 280 Ala. 227, 191 So.2d 379, delivered this day.

About half an hour past noon, defendant was driving her car on a street in a residential area. The street was twenty or twenty-two feet wide and contained two traffic lanes. It was a two-way street; traffic moved in both directions. Defendant was moving from north to south. Another automobile was going south ahead of defendant. Just before she reached the intersection, defendant passed the other car. Defendant's car struck the child south of the intersection. One witness testified that he last saw the child, before he was hit, 12 or 15 feet south of the south curbline of the intersection, and, after the child was hit, the distance was 50 or 60 feet. Sixty-five feet of skid marks were behind defendant's car when it stopped after the collision. Twenty feet of these skid marks were in the intersection and forty-five feet south of it. The witness said that, in his best judgment, defendant's car was on the left side of the road in the intersection. There were no lines marking the pedestrian crosswalks at the intersection.

About ten or fifteen minutes prior to the injury, the child's mother had gone out into the back yard with the child and his twelve-year-old brother. She told the brother to play with the child in the back yard. They lived, not on the street where the injury occurred, but on the intersecting street, in the third house from the corner.

The principal question presented for decision is whether certain statutes were enacted for the benefit of pedestrians. We dispose first of certain assignments of error which are without merit.

In Assignment 1, defendant asserts that the court erred in reading to the jury from § 58(5), Title 36, 1958 Recompilation Code 1940; Act No. 516, Section 5, 1949 Acts, page 741.

In oral charge, the court said:

'And, gentlemen, reading to you from the rules of the road, Section 58(5): 'In crossing an intersection of highways or any intersection of a highway with a railroad right of way, the driver of the vehicle shall at all times cause such vehicle to travel on the right half of the highway unless such right half is obstructed or impassable.' * * *.'

Defendant undertook to except in the following language:

'I except to that portion of the Court's oral charge wherein the Court charged the jury in substance that Section 8(5) of Title 36, Code of Alabama, could be applicable in the case on the grounds that the plaintiffs in the case are not of a class which this statute was designed to protect. * * *' (Emphasis Supplied.)

An exception designating only the subject treated by the court in an oral charge, or merely designating the beginning part of the oral charge excepted to is insufficient. Knowles v. Blue, 209 Ala. 27, 33, 95 So. 481.

Nothing can be left at large in reserving an exception to the court's oral charge. The exception must be definite to the last degree. General Electric Company v. Town of Fort Deposit, 174 Ala. 179, 188, 56 So. 802.

To invite a review of claimed error in an oral charge, an exception should be taken pointing out the particular part of the charge complained of. Matthews v. Maynard, 274 Ala. 330, 332, 148 So.2d 629.

The instant exception does not correctly designate the statute which the court read to the jury. We have not found where the court referred to 'Section 8(5)' in the oral charge, and we have not found where defendant, in excepting, made any reference to 'Section 58(5).' For this reason alone, we hold that Assignment 1 is without merit.

Also, the specific language of the charge, made the basis of the exception, is not stated. The exception designated only the subject treated by the court in its oral charge. The appellant can take nothing by its assignment of error based on such an exception. J. R. Watkins Company v. Goggans, 242 Ala. 222, 224, 5 So.2d 472; Sullivan v. Miller, 224 Ala. 395, 398, 140 So. 606.

In Assignment 2, appellant says the court 'erred in giving that portion of its oral charge * * * in which it read from Title 36, Section 12(b).' The court did read from 'Section 12--b,' and defendant did except' * * * to that portion of the Court's oral charge where the Court referred to Section 12--b of Title 36, Code of Alabama, with reference to giving an audible horn signal * * *.' Here again, however, defendant excepted to a 'portion' of the charge. We think that defendant's exception was not sufficiently definite and that Assignment 2 is without merit. Authorities, supra.

In Assignment 21, defendant says the court erred in overruling the ground of the motion for new trial wherein defendant asserts that the court erred in reading to the jury § 12(b) of Title 36, 1958 Recompiled Code.

We have already said that we do not think that any sufficient exception was reserved to the oral charge. It has long been the rule that when defendant reserves no exception to the oral charge, she cannot subsequently complain of the same. Birmingham Belt Railroad Co. v. Gerganous, 142 Ala. 238, 244, 37 So. 929; Accident Indemnity Ins. Co. v. Feely, 279 Ala. 74, 181 So.2d 889, 891. Exceptions to the charge of the court to the jury must be taken before the jury leaves the bar. Sovereign Camp, W.O.W. v. Gay, 217 Ala. 543, 546, 117 So. 78. Error in oral charge cannot be raised for the first time in motion for new trial. Assignment 21 presents nothing for review.

Assignments 20, 22, 27, 28, 29, and 30 are without merit for the same reason that Assignment 21 is without merit.

In Assignments 23 and 31, defendant asserts that the court erred in overruling defendant's motion for new trial on the ground wherein defendant says that the court erred 'in failing to instruct the jury' that before the violation of a statute can be actionable, the person complaining must be one of the class the statute was designed to protect. These assignments do not point out that defendant requested such a charge in writing. In fact, the assignments do not point out that defendant requested any instruction at all. A trial court cannot be reversed for refusal to give a charge asked unless it appears that the charge was asked in writing as the statute (§ 273, Title 7) requires. Henderson v. State, 137 Ala. 83, 84, 34 So. 828. A reversal should not be allowed where the complaining party has made no request at all. Bush v. Stanton, 273 Ala. 615, 618, 143 So.2d 621. Assignments 23 and 31 are without merit.

In Assignment 25, defendant asserts that the court erred in refusing defendant's requested written charge which recites:

'Case No. 1463

'17. I charge you that the plaintiff is under a duty to exercise reasonable care in and about the conduct and supervision of his minor child, and if you are reasonably satisfied from the evidence in this case that the plaintiff, Charles E. Lawson, did negligently permit or allow said child to be in a public street and that said negligence proximately contributed to cause the injury and damages complained of, then your judgment should be in favor of the defendant.'

Defendant says in brief that 'This assignment of error is directed to Case No. 1463, the father's loss of services suit.' The language of the charge, however, does not limit the application of the charge to the father's lawsuit. The charge says to the jury that if Charles E. Lawson, the father, was guilty of contributory negligence as defined in the charge, 'then your judgment (sic) should be in favor of the defendant.' The negligence of the father in permitting the child to be in the street would not bar recovery by the child in his action based on defendant's negligence. Government Street R.R. Co. v. Hanlon, 53 Ala. 70, 82; Jones v. Strickland, 201 Ala. 138, 141, 77 So. 562. Charge 17, however, recites to the contrary and is not a correct statement of the law in the child's case. The cases were tried together and, by its terms, Charge 17 applies to both cases.

Charges moved for by either party must be given or refused in the terms in which they are written. § 273, Title 7, Code 1940. Charge 17 was refused without error because it is an incorrect statement of the law in the child's case.

We note that Charge 17 bears the notation, 'Case No. 1463,' which is the number assigned to the father's case in the circuit court. The mere placing of this case number on the charge is not sufficient to instruct the jury that the charge applies only to the father's case.

In Assignment 18, defendant complains that the court erred in refusing defendant's Charge 20 which recites:

'20. I charge you that if you believe the evidence in this case, the plaintiff Gary Charles Lawson was not within the class of persons designed to be protected by Title 36, Section 58.5 of the 1958 Recompiled Code of Alabama, which provides as follows:

"Section 58.5. Keep to the right in crossing intersections or railroads. In crossing an intersection of highways or in the intersection of a highway by a railroad right of way, the driver of a vehicle shall at all times cause such vehicle to travel on the right half of the highway unless such right half is obstructed or impassable."

Defendant argues that § 58(5) was not enacted for the benefit of pedestrians, that the infant plaintiff...