Cannon v. Scarborough

• Decision Date: 05 November 1931
• Docket Number: 3 Div. 962.
• Citation: 137 So. 900,223 Ala. 674
• Parties: CANNON v. SCARBOROUGH.
• Court: Alabama Supreme Court

137 So. 900

223 Ala. 674

CANNON v. SCARBOROUGH.

3 Div. 962.

Supreme Court of Alabama

November 5, 1931

Rehearing Denied Dec. 17, 1931.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages for personal injuries by E. H. Scarborough against J. E. Cannon. From a judgment for plaintiff defendant appeals.

Affirmed.

Rushton Crenshaw & Rushton and J. C. Crenshaw, all of Montgomery, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

BROWN J.

This is an action on the case by the appellee against appellant for personal injuries received by the plaintiff in an automobile collision on the Montgomery-Birmingham Highway near Maxwell Field.

The complaint as originally filed consisted of four counts, but on the trial count 3 was withdrawn, and the case proceeded to trial on counts 1, 2, and 4. Counts 1 and 2 ascribe the plaintiff's injury and damage to the negligence of the defendant in the operation of his car, and count 4 to willful or wanton conduct.

The pleas were the general issue as to all of the counts, and contributory negligence as to counts 1 and 2.

The trial court refused charge D-19-the affirmative charge as to count 4-and the first serious contention here is that in this the court committed reversible error.

Appellee's contention here is, first, that the clerk of the court, in making up the transcript, has incorporated therein, without authority of law or the rules of practice, certain photographs offered in evidence, showing the scene of the accident and the condition of the two automobiles immediately after the collision, and in the absence of these items of evidence the refusal of said charge cannot be considered, citing, in support of this contention, Supreme Court Rule 24, Code of 1923, vol. 4, p. 886; Gardner v. State, 96 Ala. 12, 11 So. 402; Frieder v. B. Goodman Mfg. Co., 101 Ala. 242, 13 So. 423; Southern Ry. Co. v. Leard, 146 Ala. 349, 39 So. 449; Commercial Inv. Trust v. East, 217 Ala. 626, 117 So. 160; Pruitt v. McWhorter, 74 Ala. 315; Southern Railway Co. v. Kendall, 14 Ala. App. 242, 69 So. 328; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Fayet v. St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796.

Some of these cases deal with omission from the bill of exceptions in actions at law and from the record in equity proceedings, of material matters of evidence deemed by the court essential to a correct determination of the questions presented; others deal with the efficiency or inefficiency of forwarding original documents for inspection on appeal, without an order of the court, as required by rule 24 of Supreme Court practice. Such cases are not deemed apt authority in respect to the questions presented on this appeal.

The case of Gardner v. State, supra, urged as an authority in point, involved the practice of pasting on the margin of the record by the clerk of a paper writing which was not incorporated in the bill of exceptions and made a part thereof.

Here, so far as appears, the photographs incorporated in the record as a part of the bill of exceptions were incorporated in the bill of exceptions when it was approved by the trial judge.

Moreover, since the decision in Gardner's Case and some of the others, rule 47 of Supreme Court practice has been adopted (March 31, 1924), providing: "In preparing the transcript for this court the clerk or register, when the reproduction of documents, such as maps and photographs which were introduced in evidence, is difficult or impracticable, may attach the original as a separate page or pages with the proper certificate and the same shall be considered as a part of the transcript," etc. Code of 1923, vol. 4, p. 896.

While no doubt the better practice would be for the clerk to certify, on the page where the map or photograph is attached, that such map or photograph was offered in evidence and made a part of the bill of exceptions, and that its reproduction in the record is difficult or impracticable; yet where, as here, it is incorporated in the record as a part of the bill of exceptions and no objection is made thereto before submission of the case, this irregularity will be treated as waived by the appellee.

The foregoing applies only to the photographs and has no application to the papers referred to as the hospital and doctors' bills, which are merely inclosed in an envelope attached to the record. These cannot be considered. Gardner v. State, 96 Ala. 12, 11 So. 402; Commercial Inv. Trust v. East, 217 Ala. 626, 117 So. 160.

The last mentioned, however, are pertinent only to the quantum of actual damages recoverable, and their omission is without influence in respect to the refusal of charge D-19, which will now be considered.

The evidence is without dispute that at the time of the collision in which the plaintiff received his injuries, he was driving the Buick car north on the Montgomery-Birmingham Highway, a double-tracked thoroughfare with a dark line running along the center with sufficient space on each side of the line to allow vehicles to pass, and plaintiff's evidence tends to show he was keeping to the right of the center as he proceeded north, and just before the collision drove his car to the right until only about one-half of its width was on the pavement. That immediately before the collision the defendant approached from the north going south in the center or to the left of the center line of the highway, approaching the place of the...