Campbell v. Davis
| Decision Date | 20 December 1962 |
| Docket Number | No. 4,4 |
| Parties | H. L. CAMPBELL, Administrator, v. Leon DAVIS. Div. 111. |
| Court | Alabama Supreme Court |
Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellant.
Tipler & Fuller, Andalusia, for appellee.
This appeal is by the defendant from a jury's verdict and a judgment thereon in favor of the plaintiff below, assessing damages for wrongful death in the amount of $10,000. The action was commenced by father, Leon Davis, for the death of his minor son pursuant to § 119, Title 7, Code of Ala. 1940, against the estate of the deceased, Charles M. Locke, driver of the automobile in which plaintiff's intestate was killed.
The evidence tended to show the following: Three boys, Virgil Davis (apppellee's intestate), Ray Junior Henderson, and Bobby Barlow, were riding in an automobile being driven by Charles Melvin Locke. The car belonged to Henderson's mother. Ray had allowed Locke to drive. The boys were traveling toward Florala on County Highway No. 4, the so-called 'Wing-Lockhart' road, in Covington County. There was evidence that it was dark enough to use the car lights, but that Locke was driving with them off at the time of the collision, having been turning them off and on intermittently. Coming in the opposite direction was an automobile driven by one Jackie Lewis. Both cars being over the center line approximately one foot, they hit head-on, the left front of both meeting, described by a witness as 'locking horns'. There was evidence that Lewis had several cans of beer in his car, and that he had been drinking that day. One of the many conflicts in the evidence was as to the speed of the cars, Ray Henderson testifying that the Locke car was traveling at 40 to 50 miles per hour, the Lewis car at 80 to 100 miles per hour; while Bobby Barlow testified that the Locke car was traveling at 75 to 80 miles per hour. Both were in the Locke car in which the speedometer was broken. The highway patrolman investigating the collision estimated the speed of both cars at 75 to 80 miles per hour, which was introduced in evidence without objection. Virgil Davis and Charles Locke sustained injuries resulting in their death, and Bobby Barlow was severely injured as a result of the collision.
Appellant under the misapprehension that this action was brought pursuant to § 121, Title 7, Code of Ala. 1940, first strenuously argued that there is no authority for one estate to sue another in tort actions, but on discovering that the action was commenced under § 119, Title 7, supra, by a father for the death of his minor son, this argument seems to have been abandoned.
Appellant contends that the issue of indemnity insurance was improperly commented upon and argued to the jury by counsel for appellee, thereby necessitating a reversal. This issue bears some close scrutiny and explanation, because both sides in closing arguments to the jury argued at great length the fact of appellant's indemnity insurance. It appeared that insurance was first introduced into evidence by appellant's witness, Ray Junior Henderson, who on cross-examination volunteered that he had given a statement to an insurance agent. Appellant did not object to this testimony or move to exclude it. Appellee's counsel, pursuing the matter further, established the agent's name. Appellant offered the statement in evidence but the trial court refused it, the witness being in court. Appellant assigns only the following statement as error, which was made by appellee's counsel in closing argument:
Appellant objected to the statement and then moved for a mistrial urging that the argument was improper, unfair, and prejudicial to his case. The lower court overruled the objection and denied the motion. It is manifest that the bulk of the matters argued by appellant in brief are not embraced within his Assignments of Error; therefore, on the authority of numerous cases, we only consider the ruling clearly assigned as error. (See Ala.Dig., Appeal & Error, k719.) It should be emphasized that no objection was interposed when Henderson (witness for appellant) testified that he had given a statement to an insurance agent. The evidence was before the jury without objection, and was subject to comment by opposing counsel. Therefore, the trial court will not be put in error for overruling the objection and denying the motion for a mistrial.
Appellee's counsel made the following statement in his opening argument to the jury:
Appellant did not interpose an objection to the argument, but makes it a ground for motion for a new trial. While the argument is subject to the interpretation that appellant seeks us to indulge, i. e., that the statement was a reference to insurance coverage, we think it is subject also to the interpretation that the suit was merely against the estate of Locke and not against the administrator as an individual. Appellant by not raising an objection thereto must have thought so also. If the statement was a reference to insurance, to invite our review, it should have been duly objected to by appellant, otherwise we will not review matter alleged to be prejudicial unless it clearly appears so. Nelson v. Shelby Manufacturing & Implement Co., 96 Ala. 515(8), 11 So. 695; Southern Railway Co. v. Dickson, 211 Ala. 481(31), 100 So. 665; Ala.Dig., Trial, k131(1), (2). This, aside from other reasons, makes it patent that there was no error to reverse in the stated argument.
Appellant urges appellee's mention of a highway patrol report is sufficient to work a reversal of the case, in that the report had been excluded from evidence. Nowhere in the record do we find this assigned as error, nor do we find that it is made ground for motion for a new trial. Of consequence, there is nothing to invite our review.
Appellant urges in support of his motion for a new trial that the closing argument of appellee's counsel to the jury is so incendiary, inflammatory and grossly improper in its premises by mention of insurance coverage, and that the insurer should be made to pay, that the same should have been excluded by the court on its own motion. The record discloses that appellant's counsel also strenuously argued insurance to the jury, although the full substance of the argument is not set out. We entertain the view that since both arguments of counsel were heard in full by the trial court in connection with appellant's motion, as amended, for a new trial, and the record before us being incomplete, we must of necessity sustain the finding of the trial court, and hold that no error is made to appear in the ruling of the trial court in denying the new trial on this ground. What constitutes proper argument by counsel is largely discretionary with the trial court, having the opportunity to hear the arguments in full, and the query is to be decided upon a consideration of the peculiar facts involved and of the atmosphere created at the trial. Pacific Mutual Life Insurance Co. of California v. Green, 232 Ala. 50(1), 166 So. 696; Adams v. Queen Insurance Co. of America, 264 Ala. 572(15), 88 So.2d 331; Southern Railway Co. v. Jarvis, 266 Ala. 440(10), (11), 97 So.2d 549. No case could present a clearer need for application of the rule than the case at bar.
Appellant assigns as error the refusal of the trial court to allow him to interrogate his own witness, Ray Henderson, concerning previous alleged inconsistent statements for the purpose of refreshing his recollection. The following occurred on redirect examination by appellee:
'Q Now you gave this statement you said to Mr. Carl Murray, is that right?
'A I gave it to an insurance agency, I'm not sure about what his name is.
'Q You don't know who Mr. Carl Murray was do you?
'A No, sir.
'Q Now you gave this statement in question and answer form before Mr. Earl...
To continue reading
Request your trial
-
Geohagan v. General Motors Corp.
...death of the defendant although he can no longer be punished. Bagley v. Grime, 283 Ala. 688, 220 So.2d 876 (1969); Campbell v. Davis, 274 Ala. 555, 150 So.2d 187 (1962). (2) Punitive damages may be awarded for simple negligence where the injury results in death. Southern Ry. Co. v. Sherrill......
-
Cloud v. Moon
...There must be an avowed surprise before one's own witness may be subjected to cross-examination by the party calling him. Campbell v. Davis, 274 Ala. 555, 150 So.2d 187; Alabama Power Co. v Hall, 212 Ala. 638, 103 So. 867. Here, appellee could not have been surprised. The witness had been o......
-
Hill v. Sherwood
...283 (1959); Daniel Construction Company v. Pierce, supra; Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960); Campbell v. Davis, 274 Ala. 555, 150 So.2d 187 (1962); Blount Brothers Construction Company v. Rose, 274 Ala. 429, 149 So.2d 821 (1963); State Farm Mutual Automobile Insurance Co......
-
Donald v. Matheny
...justify that remark of his counsel, as aforequoted, is not referable to the record here by which this court is bound. Campbell v. Davis, 274 Ala. 555, 150 So.2d 187(8); Gorum v. Samuel, 274 Ala. 690, 151 So.2d 393(1). Hence, we pretermit consideration of the stated We consider the argument ......