Cargall v. Riley

• Decision Date: 05 April 1923
• Docket Number: 7 Div. 328.
• Citation: 209 Ala. 183,95 So. 821
• Parties: CARGALL v. RILEY.
• Court: Alabama Supreme Court

95 So. 821

209 Ala. 183

CARGALL v. RILEY.

7 Div. 328.

Supreme Court of Alabama

April 5, 1923

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

John H Riley sues Charles J. Cargall for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

Culli &amp Hunt, of Gadsden, for appellant.

Hood &amp Murphree, of Gadsden, for appellee.

MILLER J.

Suit by John H. Riley, appellee, against Charles J Cargall, appellant, to recover damages for personal injuries received by him in a collision between an automobile driven by defendant and an automobile standing in or near the center of Forest avenue near the intersection of Tenth street, in the city of Gadsden. There were four counts in the complaint, to each of which demurrers were overruled by the court. Plaintiff withdrew count 3. The jury returned a verdict in favor of the plaintiff, and based their verdict solely on count 4 of the complaint Judgment was rendered thereon, from which judgment defendant has prosecuted this appeal.

As the jury returned special verdict in favor of plaintiff under count 4, we will review only the rulings of the court applicable to this count. Count 3 was withdrawn by plaintiff; the general charge as to count 2 in favor of defendant was given by the court; and count 1 was eliminated by the verdict of the jury being based on and under count 4.

Count 4 is a wanton count. It charges the defendant willfully, wantonly, or intentionally drove said automobile against plaintiff, inflicting said injuries and damages. It states a cause of action, and is not subject to the demurrers assigned to it. The defendant insists it is unintelligible, that the demurrers to it should have been sustained, and the verdict of the jury under it should not have been received and entered of record by the court, because it contains the word "two" where the word "four" should be, and neither the court nor the jury could so change it. In the complaint we find the following:

"4. For count four of the complaint plaintiff refers to and adopts all of count one from the beginning thereof down to and including the words where they appear therein, 'all to his damage in the amount of thirty thousand ($30,000) dollars,' and in completion of count two adds the following: 'Plaintiff avers that his said injuries and damages were proximately caused by the willful, wanton, or intentional conduct of defendant, in that defendant willfully, wantonly, or intentionally drove said automobile against plaintiff, inflicting plaintiff's said injuries and damages."'

It is true count 4 states, "and in completion of count two adds the following." The demurrer does not point out this defect in the count, and it does not state the count should have the word "four" where it has the word "two." The defendant in its charges did not call the attention of the trial court to the fact that this count should have the word "four" where it has the word "two"; nor did defendant call the attention of the trial court to this defect or error in the count, when it objected to the court receiving the verdict of the jury based on that count alone. However, this error in placing "two" where "four" should have been in count 4 is a clerical one, clearly unintentional from the plain purpose of the count; the error is obvious, and the defect is self-correcting; therefore no reversible error can be predicated thereon. Sheffield v. Harris, 183 Ala. 357, h. n. 10, 61 So. 88; Wilson v. McKleroy, 206 Ala. 342, 89 So. 584 (on rehearing).

Pete Tucker, witness for defendant, was not present, but a showing was made for him. He was in his Chevrolet car, which was standing still at the time of the injury. His car was injured. Plaintiff had one foot on the running board of witness' car at the time of the injury; the plaintiff's car being on the same side of the street near by, and defendant was running his car between the two cars, defendant's car striking witness Tucker's car. The court, on motion of plaintiff, struck the following from the showing of this witness:

"That the defendant did not discover my car standing in the middle of the street until he was within 20 or 25 feet of the same."

This was incompetent evidence. The witness was testifying as to what the defendant knew when the defendant discovered his car as he approached witness while defendant's car was running. This was a fact known to defendant, and the witness could not tell when defendant, approaching in his car, saw or discovered the car of witness. Such evidence was the mere surmise or guess of the witness, and was properly excluded from the jury.

The court also struck, on motion of the plaintiff, the following conversation of witness with defendant from the showing of this witness:

"That witness then stated, 'What are we going to do about my car, which had its front wheel broken?' and Mr. Cargall [defendant] said, 'I will see you in the morning about that;' and I said, 'All right.' Then Mr. Cargall drove on towards Alabama City. On the following morning the defendant came to see me about my car, and we adjusted this matter between ourselves."

This was res inter alios acta; it was after the collision. The plaintiff was not present, did not hear it, and had no interest in defendant's settlement with witness as to damage to his car. The court did not err in excluding this conversation from the consideration of the jury, as it was not relevant to the issue in this case. 6 Michie, Dig. 257, § 228.

Witnesses who saw and heard the defendant's car running at the time of the collision, or as it approached the car it struck, or as it passed the plaintiff when injured,...