Brown v. Billy Marlar Chevrolet, Inc.
| Decision Date | 14 March 1980 |
| Citation | 381 So.2d 191 |
| Parties | James W. BROWN and United States of America v. BILLY MARLAR CHEVROLET, INC., a corp., et al. 78-212. |
| Court | Alabama Supreme Court |
James A. Turner, of Turner, Turner & Turner, Tuscaloosa, for appellants.
John A. Owens, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for James Orville Scott, appellee.
This is an appeal from a jury verdict, and judgment for Billy Marlar Chevrolet and James Orville Scott, resulting from a suit for personal injuries received by James W. Brown in an automobile accident. We affirm.
After a domino game with friends in Reform, Brown, receiving a ride from Dewey Bonner, returned to his home on U. S. Highway 82 in Pickens County. Upon his arrival, Brown disembarked from Bonner's automobile on the opposite side of the highway. He started across the highway looked to his left, saw approaching cars looked to his right, saw no moving vehicles. He proceeded to cross the road, and while crossing, a car on his left passed him. When he reached the center of the road, he hurried shooing his dog from there. When he reached the apron, he was hit by a car owned by Billy Marlar Chevrolet, and driven by James Scott. He was knocked 25 feet east of the highway into a ditch. Brown's injuries included severance of his right foot, his right leg broken in 5 places requiring amputation and a broken pelvis.
In his complaint against Scott and Marlar, Brown asserted a claim for the use and benefit of the United States with its expressed consent under T. 42, § 2651 § 2653, U.S.C., for past and future treatment of his injuries.
The trial proceeded on an answer of contributory negligence, and at its conclusion, the trial court directed a verdict for Billy Marlar Chevrolet, and submitted the case to the jury on the issue of Scott's liability. The jury returned a verdict for Scott. Brown filed a motion for new trial asserting trial court errors, and for the first time, challenged the master jury list. The motion was denied.
The principal issues presented to this Court for review are: the challenged master jury list, the sufficiency of Scott's plea of contributory negligence, the refusal of the trial court to permit the exhibition of a prosthetic device, and the court's charge of the duty of a pedestrian when crossing a roadway other than at an intersection or crosswalk.
Because Brown waited until after the trial to challenge the master jury list, we hold that, under the facts of this case, he has now waived that right. This Court held in Williams v. State, 342 So.2d 1328 (Ala.1977) that:
" . . . henceforth a failure by the defendant in a criminal case to raise proper objection to the composition of a grand or petit jury, including, but not limited to, the constitutional ground of the jury selection process, before entering upon the trial of the case on its merits, constitutes a waiver of his right to do so, subject, of course, to the recognized exceptions of fraud and as to matters which were not known, or by the exercise of due diligence, could not have been known, before trial."
Even though Williams was a criminal case, we opine that the rule announced there is also applicable in a civil case. Cf. Fulwider v. Jacob, 221 Ala. 124, 127 So. 818 (1930).
Without setting it out, the evidence clearly shows that Brown's counsel, with due diligence, could have found out how the master jury list was compiled. Moreover, after reviewing the testimony of the jury commission clerk and other members of the jury commission, we conclude that there was no fraud involved in compiling the jury list by the commission.
In his answer, Scott pleaded the affirmative defense of contributory negligence. In one instance, he stated that "plaintiff was guilty of negligence which proximately contributed to this accident" in another, he stated that "plaintiff was guilty of contributory negligence." Brown challenges the sufficiency of those allegations to raise the affirmative defense of contributory negligence. He excepted to the court's oral charge, and the requested written charges on contributory negligence given by the court, on the same grounds stated here on appeal i. e., no specific allegations.
While Rule 8(c) ARCP provides that, "In pleading to a preceding pleading, a party shall set forth affirmatively . . . contributory negligence . . . ," we opine that extensive factual allegations of contributory negligence need not be set out in an answer. The answer here in general terms is sufficient under the Rule. Cf. American Motorists Ins. Co. v. Napoli, 166 F.2d 24 (5th Cir. 1948). See also 5 Wright & Miller, Federal Practice and Procedure, Civil, § 1274.
Brown says that the trial court abused its discretion by prohibiting him from demonstrating to the jury how his artificial leg functioned, and the means by which it was attached to his body. Prosthetic devices are admissible in evidence in the discretion of the trial judge, provided that they are not unduly inflammatory, or offensive, and do not unjustly arouse sympathy for or prejudice against a party. See 29 Am.Jur.2d § 772, p. 842; 83 A.L.R.2d 1273, Annotation § 3; Cf. McElroy, The Law of Evidence in Alabama, Vol. 2, § 207.01(5) ().
From our examination of the evidence, it appears that Brown showed the jury about everything there was to show regarding his artificial leg. For example, part of Brown's testimony included:
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...N.Y.A.D. 2 Dept. (2006), §22.420(c) Brooks v. Friedman, 769 N.E.2d 696 (Ind.App. 2002), §22.420 Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala. 1980), §33.200 Brown v. Bright Clouds Ministries, Inc ., 891 A.2d 999, 94 Conn.App. 181 (2006), Overview, §5.300 Brown v. Commonwealth, ......
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...N.Y.A.D. 2 Dept. (2006), §22.420(c) Brooks v. Friedman, 769 N.E.2d 696 (Ind.App. 2002), §22.420 Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala. 1980), §33.200 Brown v. Bright Clouds Ministries, Inc ., 891 A.2d 999, 94 Conn.App. 181 (2006), Overview, §5.300 Brown v. Commonwealth, ......
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...N.Y.A.D. 2 Dept. (2006), §22.420(c) Brooks v. Friedman, 769 N.E.2d 696 (Ind.App. 2002), §22.420 Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala. 1980), §33.200 Brown v. Bright Clouds Ministries, Inc ., 891 A.2d 999, 94 Conn.App. 181 (2006), Overview, §5.300 Brown v. Commonwealth, ......