Campbell v. Davis, 4

• Court: Supreme Court of Alabama
• Writing for the Court: SIMPSON; LIVINGSTON
• Citation: 274 Ala. 555,150 So.2d 187
• Parties: H. L. CAMPBELL, Administrator, v. Leon DAVIS. Div. 111.
• Docket Number: No. 4,4
• Decision Date: 20 December 1962

Page 187

150 So.2d 187 274 Ala. 555 H. L. CAMPBELL, Administrator,
v.
Leon DAVIS. No. 4 Div. 111. Supreme Court of Alabama. Dec. 20, 1962.
Rehearing Denied Feb. 28, 1963.

[274 Ala. 556]

Page 188

Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellant.

[274 Ala. 557] Tipler & Fuller, Andalusia, for appellee.

SIMPSON, Justice.

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

Page 189

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 [274 Ala. 558] 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:

'The evidence is in without objection, that since right after this wreck happened, in fact within a few days after this wreck happened, this insurance agent was all over the place looking up witnesses and taking statements. That comes from the witnesses.'

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:

'This is the law, and I don't think you will hear anything different, that this is the only way it can be done. You know it is done every day, and if they want to try to put a value of damages on the boy's life, I don't know what it is worth and there is no way you can do it because, of course, there is no amount, but the law says if those facts

Page 190

are true, if the Locke boy was guilty of damages, then Mr. Campbell as administrator of his estate, not personally, but in the obvious way, is to...