Birmingham Slag Division of Vulcan Materials Co. v. Chandler

• Decision Date: 28 January 1970
• Docket Number: 7 Div. 3
• Citation: 45 Ala.App. 406,231 So.2d 329
• Parties: BIRMINGHAM SLAG DIVISION OF VULCAN MATERIALS COMPANY, Inc. v. James A. CHANDLER.
• Court: Alabama Court of Civil Appeals

Page 329

231 So.2d 329

45 Ala.App. 406

BIRMINGHAM SLAG DIVISION OF VULCAN MATERIALS COMPANY, Inc. v. James A. CHANDLER.

7 Div. 3.

Court of Civil Appeals of Alabama.

Jan. 28, 1970.

Dixon, Wooten & Boyett, Talladega, Huie, Fernambucq & Stewart, Birmingham, for appellant.

Gaines & Powers, Talladega, for appellee.

WRIGHT, Judge.

This case comes on appeal from the Circuit Court of Talladega County. The case was tried before a jury and a verdict returned for $2,000 in favor of plaintiff, James A. Chandler, and against defendant, Birmingham Slag Division of Vulcan Materials Company, Inc. The suit was for property damage to plaintiff's automobile, which was being driven by plaintiff's son.

The complaint contained one count alleging negligence by defendant.

The factual situation was that on the night of June 11, 1966, plaintiff's son was returning home on Alabama Highway 93, in Talladega County. At the scene of the accident, Highway 93 is intersected by an unnamed county road leading to appellant's rock quarry, located approximately one mile from the intersection. The evidence indicated that the county road enters Highway 93 on the outside of a curve, with the curve banked prominently at the point of intersection.

The driver was traveling 60 to 65 miles per hour immediately before entering the curve, and as he entered the curve, the car began to skid on gravel and turned over, stopping some sixty feet away. The driver testified that he saw gravel in the road immediately before he began to skid, and after the accident saw fine gravel covering the highway on the side he had been traveling. A photograph was introduced of the scene, showing much loose gravel at the point of intersection and on the right side of Highway 93. There was evidence that Vulcan Materials Company, defendant--appellant here, operated a rock quarry in which rock was excavated and crushed by a crusher to various sizes. This material was stockpiled on the premises and subsequently loaded by employees of appellant on trucks of customers who came to the quarry to purchase materials. During the two weeks prior to the date of the accident some 32,000 tons had been loaded and hauled away from the quarry. The only way of ingress and egress was over the road intersecting Highway 93 at the point of the accident.

A former employee of appellant testified that the trucks hauling away the material were loaded by appellant's employees to such an extent that the material was piled high above the sides, and he had seen it fall off as the trucks were driven away. He further testified that so much material had fallen off these trucks over a period of time that the road from the quarry to the intersection where the accident occurred was covered with this material, and at times was nearly impassable. The material on the highway at the intersection was identified as material that came from appellant's quarry.

The plaintiff testified that in his opinion the reasonable market value of his automobile immediately before the accident was $3,000, and immediately after, approximately $300.

On cross-examination of plaintiff, appellant stated for the record that he had in his custody an instrument, either proof of loss or subrogation receipt, which indicated that plaintiff had settled with his insurance company for loss of his automobile for the sum of $2450. It was insisted that this instrument was admissible in evidence for the purpose of impeaching plaintiff's testimony as to the reasonable market value of his automobile. Objection was made to the introduction which was sustained by the court and exception was duly taken.

After other testimony, the case went to the jury. Verdict was returned in favor of plaintiff for $2000, and judgment entered accordingly.

Motion for a new trial was made by defendant and was denied. It is from the denial of the motion, and other alleged errors by the trial court, that defendant below has taken this appeal.

There were ten assignments of error, but 3, 6, and 10 were not argued in brief and thus are considered waived. Assignment Number Two is first argued in brief. We will proceed in the same order as argued in appellant's brief.

Assignment of Error Two is by acknowledgment general, and charges error in denying appellant's motion for a new trial. There is argued in brief that the verdict of the jury and judgment of the court is contrary to law. It is insisted by appellant that the verdict and judgment is contrary to law because the only evidence as to damages of appellee was his opinion that the reasonable market value of his automobile before the accident was $3000, and after the accident $300. Thus, the recoverable damage was the difference in these before and after values, or $2700. It is contended that since this was the only evidence of damage, the verdict for $2000 was improper. The jury could only return a verdict for the undisputed amount of damage of $2700, says appellant.

The proposition of law in support of this assignment is Proposition of Law No. I, in appellant's brief, as follows:

'PROPOSITION OF LAW NO. I

'Where the only evidence as to damage to personal property is the testimony of the owner of such property as to the difference in the reasonable market value of such property immediately before and immediately after the damage to it, the jury may not return a verdict in favor of the owner in any other amount.'

After reading the cases cited in support of this proposition, we come to the conclusion they do not support the stated proposition. They are cases referring to testimony of unimpeached witnesses as to damages in fact. One case involved a verdict for one-half the amount stipulated due under a life insurance policy. In the other case, the verdict was for approximately one-half the amount shown due on a promissory note. These are not applicable authority to the matter in point.

We have here nothing more than opinion evidence, and it is the law, long ago declared by the Supreme Court of this State, that a jury is not bound by opinion evidence of damages, though undisputed. Obear-Nester Glass Co. v. Mobile Drug Co., 208 Ala. 618, 95 So. 13; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755.

In Tennessee Coal, Iron & Railroad Co. v. Ray, 248 Ala. 449, 28 So.2d 726, the Supreme Court said 'The evidence of value was but an opinion, and is not conclusive on juries even when it is without conflict.' (Citation omitted.)

The jury should not fail to apply their own personal opinion in regard to such matters, drawn from everyday observation and experience. Richardson v. Stinson, 211 Ala. 254, 100 So. 209. (Citation omitted.)

The trial court did not err in denying appellant's motion for a new trial based on the ground that the verdict of the jury was contrary to the law.

Appellant next argued Assignment Eight, which is, that the court erred in refusing to allow counsel for appellant to cross-examine appellee as to a prior and inconsistent written statement made by appellee as to the damages or value of his automobile. Assignment of Error Seven and Nine are similar to Assignment Eight, and appellant has assigned his argument in brief to Seven and Nine, as well as Eight. Assignment Seven charges error in the refusal of the court to allow counsel for appellant, in his opening statement to the jury, to state that he expected to show that appellee had collected from his insurance company less than counsel for appellee had stated was the amount of damages he expected to prove. We will consider Assignments of Error Seven, Eight, and Nine together.

Let it be pointed out, that the alleged prior inconsistent written statement is not a part of the record and not properly before us. We have only counsel's statement to the court as to an alleged instrument in his custody, and that is far from clear. After noon recess the transcript shows the following occurred outside the presence of the jury:

'Mr. Huie: Judge for the record--

'Mr. Gaines: Let me make a statement for the record. Well, go ahead.

'Mr. Huie: The Defendant, Birmingham Slag Division of Vulcan Materials Company makes known to the Court that there is in the custody of the attorney for the Plaintiff a proof of loss or subrogation receipt on which is indicated that the Plaintiff claims of the State Farm Mutual Automobile Insurance Company the sum of $2450.00. In full settlement and final disposition of all claims and liabilities. For damage to a 1965 Buick automobile, arising from a collision, which occurred on or about the 10th day of June, 1966, in Talladega County, Alabama. The Defendant further points out and makes known to the Court that the plaintiff has testified that the value of the automobile involved in this collision prior to the accident had a value of $3000. The Defendant insists that he is entitled to introduce the statement heretofore made by the Plaintiff by way of impeachment or rather for the purpose of impeaching the testimony of the plaintiff.

'The Court: Relative to value?

'Mr. Huie: Relative to value.

'The Court: If you are offering it, I'll sustain the objection to it.

'Mr. Huie: The Defendant respectfully reserves an exception.

'The Court: I will consistently rule that you cannot go into the settlement between the insured and the insurer and if there is another matters (sic) you want to make an offer of proof on, if it is convenient it might speed the trial if you want to do that now, but if you are not ready we can send the jury back out.'

This part of the record is unclear--First, there is total uncertainty as to what the alleged instrument was. It is classified as 'a proof of loss or subrogation receipt.' There is obviously a distinct difference in such instruments. It could not be both. Second, the record does not indicate that the instrument, whatever it was, was actually produced and offered in evidence. The court stated, 'If you are offering it, I'll sustain the objection to it.' There was no affirmative...