Colquett v. Williams

• Decision Date: 22 March 1956
• Docket Number: 4 Div. 844
• Citation: 86 So.2d 381,264 Ala. 214
• Parties: J. F. COLQUETT et al. v. Jimmy D. WILLIAMS, pro aml.
• Court: Alabama Supreme Court

Page 381

86 So.2d 381

264 Ala. 214

J. F. COLQUETT et al. v. Jimmy D. WILLIAMS, pro aml.

4 Div. 844.

Supreme Court of Alabama.

March 22, 1956.

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

Frank J. Tipler, Jr., Andalusia, for appellee.

MERRILL, Justice.

This is an appeal from a judgment of the Circuit Court of Covington County in the sum of $12,000 damages for personal injuries which was rendered in favor of appellee, plaintiff below. The cause was submitted on motion to dismiss the appeal and on the merits.

On the motion.

Appellee moves that the transcript of the record be stricken because it was not filed in compliance with Rule 37, Revised Rules, which rule, as applicable here, provides:

'* * * the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below.' The ground for appellee's motion is that the transcript of the evidence was filed on June 27, 1955 and more than 60 days elapsed before the transcript of the record was filed in this court on September 2, 1955.

On July 5, 1955, appellants filed objections to the transcript of the evidence and to the record. With the objections was a motion to correct the record by adding certain alleged omitted matter. On July 6th, the court ordered the clerk to include certain specified matter in the transcript, and on July 8th, ordered the court reporter to certify certain additional proceedings, and at the same time denied appellants' motion to have incorporated in the record the argument of appellee's counsel to the jury.

That part of the act which is listed in the 1953 cumulative pocket part, Code of Alabama 1940, as Title 7, § 827 (1a) provides:

'The period of time within which the reporter must file the transcript may be extended by the trial court for cause. Within ten (10) days after the filing with the clerk of the certified transcript by the court reporter, either party may file with the clerk objections to the certified transcript, with his certificate that he has notified the opposing party, or attorney of record, that the same will be called to the attention of the trial court at a specified time and place. If no objections are filed within such ten (10) days the transcript shall be conclusively presumed to be correct. The hearing of objections and the ruling of the court thereon shall be concluded within a period of ninety (90) days from the date of the taking of the appeal, provided that this period may be extended by the trial court for cause. The trial court shall endorse its ruling on the transcript, sign the same, all within said ninety (90) days period, except as hereinbefore provided. Any ruling of the trial court upon such requested hearing, as well as any ruling on objections to a succinct statement, provided for in section 827(3) of this title, shall be reviewable, with error duly assigned by the dissatisfied party upon the appeal of the cause, and the evidence upon such hearing shall be duly certified by the court reporter.'

The apparent effect of this section is to extend the time in which the transcript must be filed. There is no conflict with Rule 37 because the transcript of the evidence was not established until the expiration of the ten day period, in which either party may interpose objections to the certified transcript. The transcript was not established until July 8, 1955 when the court ruled on the objections to the transcript of the evidence. The transcript of the record was filed in this court within sixty days after July 8; therefore appellee's motion to dismiss the appeal is without merit and is due to be, and is, denied.

On the merits.

Appellants insist that their case was tried in disregard of a mandate of this court to the trial court. This contention arises out of the following facts. After one continuance had been granted appellants, the cause was set for trial on April 5, 1955. On March 24, 1955, appellants propounded interrogatories to the appellee and to one Hair, who was originally a codefendant, but was stricken as such by appellee on March 28, 1955. On March 31, 1955 appellants filed a petition in this court praying that this court issue a Rule Nisi or an alternative writ of mandamus directed to the Judge of the Circuit Court of Covington County commanding him to enter an order requiring the appellee and Hair to answer said interrogatories; or to appear and show cause why a peremptory writ of mandamus should not issue, etc., and for general relief.

This court granted the relief prayed for, and ordered all proceedings stayed pending compliance with the Rule Nisi. On April 2, the trial court ordered appellee and Hair to answer the interrogatories and they filed their answers on April 4th. The same day appellants filed a motion for a stay of proceedings and a motion to continue the cause. The grounds for each of these motions were that the mandate of the Supreme Court had not been complied with in that the answers to the interrogatories were not responsive, incomplete, evasive, and sought to inject matter prejudicial to the appellants. These motions were overruled. Appellants then filed motions to require appellee and Hair to make full answers to the interrogatories. The judge overruled this motion, stating that it was his opinion that the answers were full and complete, but did grant appellants' motions to strike certain answers or portions thereof.

We have examined carefully the interrogatories in question and the answers filed in reply thereto. We concur in the opinion of the trial court that the answers given constituted a sufficient compliance with the order issued by this court. Whether the answers to the interrogatories were sufficiently full is a matter of discretion with the trial court, Roll v. Howell, 9 Ala.App. 171, 62 So. 463, and it is the general rule that matters resting in the sound discretion of the court will not be disturbed on appeal unless there has been a clear abuse of discretion, Ex parte Jonas, 186 Ala. 567, 64 So. 960. See Ex parte Nolen, 223 Ala. 213, 135 So. 337; Sovereign Camp, W. O. W. v. Ward, 201 Ala. 446, 78 So. 824. There was no abuse of discretion by the trial court in his ruling on appellants' motion.

We have examined all of appellants' argued assignments of error relating to matters and rulings occurring prior to the trial and find no reversible error.

A condensation of the essential facts for an understanding of how the accident occurred follow. Appellant Wishum was an employee of appellant Colquett. Wishum, while acting in the line and scope of his employment, was driving Colquett's oil truck along East Three Notch Street in Andalusia in a westerly direction in the lane of traffic at a low rate of speed. Herman Hair's automobile was parked parallel to the curb, also headed west. The appellee, 15 years of age, was riding his bicycle along the street between the parked cars and the line of traffic. He, too, was going west. Just as he came abreast of Hair's automobile, Hair opened the left front door and appellee was knocked off his bicycle in front of, or even with, the oncoming oil truck. The front wheel of the truck did not touch appellee but the rear wheel ran over and crushed his leg. Appellee was not far from the back end of the truck when it stopped. As already stated, Hair had been dropped as a codefendant prior to the trial.

Assignments of error 22 through 32 deal with rulings on admission of evidence relating to defendant's insurance coverage.

On cross examination of defendant Wishum, the following occurred:

'Now Tom, who was the first person you ever gave a statement to about this?

'Mr. Albritton: We object.

'The Court: Overrule it.

'Mr. Albritton: We except.

'A. You mean a signed statement?

'Q. Yeah, a signed statement.

'A. I can't call his name right now--an insurance adjuster.

'Mr. Albritton: We move to exclude that answer, if the Court pleases.

'The Court: Overrule your motion.

'Mr. Albritton: We except.'

That part of the answer 'an insurance adjuster' was not responsive to the question and the motion to exclude should have been sustained. Then on re-direct examination appellants brought out that the insurance adjuster was representing Hair's insurance company. This evidence tended to cure any prejudicial effect of the error in not excluding the unresponsive answer. But on recross the following transpired:

'Q. He asked about insurance. Did you give a statement to your insurance company?

'Mr. Albritton: We object.

'The Court: Overrule it.

'Mr. Albritton: We except. A. Did I give any statement to my insurance company? I don't believe I did. I don't remember.

'Mr. Albritton: We except and move to exclude it.

'The Court: Overrule it.

'Mr. Albritton: And we move the court for a mistrial for a manifest prejudicial error in this case.

'The Court: Overrule your motion.

'Mr. Albritton: We except.

'Q. Do you have that statement? A. No, sir.

'Q. Do you know who it has been turned over to? A. No, sir.

'Q. You know whether it is in Mr. Albritton's custody or not? A. No, sir.

'Q. But you did give a written statement you think to your insurance company?

'Mr. Albritton: We object again.

'The Court: Overrule it.

'Mr. Albritton: And we renew our motion for a mistrial for a manifest prejudicial error in this case.

'The Court: Overrule your motion.

'Mr. Albritton: We except.'

The questions concerning 'your insurance company' were highly improper and prejudicial and the objections to them should have been sustained.

Assignment of error 22 is that 'the court erred in failing to sustain appellants' objection to the following statement made by counsel for the appellee in the presence of the jury: 'I haven't got a big company behind me''. This remark was improper and had no connection with the issues, either directly or indirectly, and should have been excluded, but, we are unable to ascertain from the record whether the appellants' objection was...