Christiansen v. Hall

• Decision Date: 14 September 1990
• Citation: 567 So.2d 1338
• Court: Alabama Supreme Court
• Parties: Robert G. CHRISTIANSEN v. John R. HALL and Belinda Hall. 89-814.

Page 1338

567 So.2d 1338

Robert G. CHRISTIANSEN v. John R. HALL and Belinda Hall.

89-814.

Supreme Court of Alabama.

Sept. 14, 1990.

William Swatek, Alabaster, for appellant.

Walter W. Kennedy III, Oneonta, for appellees.

HOUSTON, Justice.

In this case, a jury found for the defendants, John R. and Belinda Hall, and against the plaintiff, Robert G. Christiansen, on Christiansen's claims alleging nuisance and trespass caused by the construction of poultry breeder houses. Christiansen appeals, arguing three issues: whether the trial court erred in instructing the jury on mitigation of damages; whether the trial court erred in admitting the testimony of one of the defense witnesses; and whether the jury's verdict was against the great weight of the evidence. We affirm.

A recitation of the facts of the instant case would not aid the bench or the bar in an understanding of our resolution of the issues; therefore, we have not included one in this opinion.

Christiansen asserts that the trial court erred in charging the jury that he had a duty to mitigate his damages.

The trial court instructed the jury on the elements of nuisance and trespass causes of action and on Christiansen's burden of proof. The jury was instructed that if they were not reasonably satisfied that Christiansen had met his burden of proof of nuisance or trespass that "you [the jury] would go no further." Thereafter, the trial court instructed the jury on compensatory and punitive damages, concluding its instruction on damages with the following:

"It is the duty of one who is injured or damaged to exercise ordinary care to reduce his or her damages. He is bound to exercise such care as a reasonable prudent person would exercise under like circumstances to reduce or mitigate the damages. He can recover only such damages as would have been sustained had such care been exercised."

Christiansen objected to this charge, stating as follows:

"I would object to the portion of the Court's charge wherein the Court charged that the plaintiff has the burden of exercising ordinary care to reduce or mitigate damages. I believe that comes from a pattern jury charge...."

Rule 51, A.R.Civ.P., provides:

"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." (Emphasis supplied.)

In McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859-60 (Ala.1988), this Court held:

"Although Rule 51 does not contemplate that the objecting party, in order to preserve for appellate review an erroneous instruction, deliver a discourse on the applicable law of the case, he must adequately state specific grounds for his objection." (Citations omitted.) (Emphasis supplied.)

Christiansen stated no ground of objection to the instruction on mitigation of damages, unless the statement, "I believe that comes from a pattern jury charge," could be considered a ground for an objection. Even though the use of Alabama pattern jury instructions is "without prejudice to the rights of any litigant to make and reserve for review any objection thereto either as to form, substance or application" (Alabama Pattern Jury Instructions: Civil (1974) at X), the fact that the particular instruction comes from an Alabama pattern jury instruction is not a proper ground for objection.

Indeed, the charge did come from Alabama Pattern Jury Instructions and is a proper instruction applicable to the facts of this case. There is nothing for us to review on this issue.

The next argument is a tribute to the creativity of our state's Bar. "The rule" was invoked at the commencement of the trial, see McElroy's Alabama Evidence § 286.01 (3rd ed. 1977) ("Sequestration of or putting witnesses 'under the rule' "). This rule requires that witnesses be excluded from the courtroom so that they will not hear each other testify. Christiansen does not contend that any of the witnesses for the defense were in the courtroom during any testimony or that any defense witness heard any other witness testify. Rather, Christiansen contends that "the rule" was violated by defense counsel's conferring with the Halls and a group of potential witnesses and friends of the Halls during a recess and that the trial court abused its discretion in allowing the testimony of a particular defense witness.

The evidence reveals not only that the testimony of this particular defense witness was largely cumulative of the testimony previously elicited from another defense witness whose testimony was admitted without objection, but also that Christiansen's counsel cross-examined that witness concerning his meeting with defense counsel.

The general rule is that excluding witnesses upon invocation of "the rule" (i.e., the rule requiring sequestration of witnesses) is a matter left largely to the discretion of the trial judge and that his decision will not be disturbed on appeal absent a showing of an abuse of discretion. Camp v. General Motors Corp., 454 So.2d 958 (Ala.1984). Furthermore, our case law has consistently upheld trial court rulings that allowed testimony from witnesses who were present in the courtroom during all or a portion of the testimony of other witnesses. See ...