Cooper v. Watts
Decision Date | 27 October 1966 |
Docket Number | 1 Div. 273 |
Citation | 191 So.2d 519,280 Ala. 236 |
Parties | Travis COOPER v. Daisy WATTS. |
Court | Alabama Supreme Court |
Paul W. Brock, Louis E. Braswell and Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant and for United States Fire Ins. Co. on motion to require supersedeas bond.
Samuel Stockman, Mobile, for appellant Cooper on motion to require insurance carrier to post supersedeas bond.
Kilborn, Darby & Kilborn, Mobile, for appellee.
Appellee brought suit against appellant and two other persons to recover damages for injuries she received when appellant drove a truck, in which appellee was a passenger, into the side of a concrete bridge. The complaint, as last amended, contained two counts, one charging negligence and the other wantonness. The trial court gave the affirmative charge with hypothesis in favor of all three defendants as to the negligence the affirmative charge with hypothesis in favor of all three defendants as to the negligence count and also gave the charge in favor of the two other defendants as to the wanton count. The case went to the jury against appellant alone on the wanton count.
The jury returned a verdict for $30,000 in favor of appellee. There was judgment in accord with the verdict. This appeal is from that judgment and also from the judgment overruling appellant's motion for a new trial.
Appellant assigns error in overruling his motion for a new trial. Among the argued grounds of the motion are several charging insufficiency of the evidence to support the charge of wantonness. Our view is that a jury question was presented on the issue of wantonness.
In determining the sufficiency of the evidence, this court must accept the evidence most favorable to the plaintiff as true, and must indulge such reasonable inferences therefrom as the jury was free to draw. See: Randolph v. Kessler, 275 Ala. 73, 152 So.2d 138; English v. Jacobs, 263 Ala. 376, 82 So.2d 542. Considering the evidence in the light of this rule, we think there was ample support for the jury's finding of wantonness on the part of appellant.
Barnes v. Haney, Ala., 189 So.2d 779.
We see no good purpose to be served by detailing the evidence. It seems sufficient to note the following: Appellee, a practical nurse, was being taken by appellant to her night work. He had been to her house to check her driveway. On the way, appellant stopped at the Tarpon Lounge. When he got there he was already slightly inebriated. While there, he drank three or four beers and got 'pretty well loaded.' Appellee drank coffee. On leaving the Lounge, appellant 'scratched off,' throwing gravel against the building, and left at a high rate of speed, about 60 miles an hour on an unfamiliar road. It was a dry, clear night, and there was nothing to obscure his vision. He was swerving back and forth across the road when he struck the bridge, which was a short distance from the Lounge. The road was paved, and it was downhill from the Lounge to the bridge. There was no traffic on the road in either direction.
The other questions argued by appellant relate to the admission of evidence and argument to the jury by appellee's counsel. All of these argued assignments of error relate to, and have a bearing upon, the amount of damages to be awarded the plaintiff; but the amount of the damages is not questioned by appellant in his brief, although one of the grounds of his motion for a new trial charged excessiveness of the verdict. Accordingly, error, if there be error in any of the challenged rulings, is rendered harmless and cannot work a reversal. See: State v. Dunlap, 279 Ala. 418, 186 So.2d 132, and cases there cited; Louisville and Nashville Railroad Company v. Lynch, 279 Ala. 461, 186 So.2d 921; State v. Jackson, 279 Ala. 425, 186 So.2d 139; State v. LeCroy, 279 Ala. 428, 186 So.2d 142; State v. Peinhardt, 270 Ala. 627, 120 So.2d 728; Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259; Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 110 So. 312, cert. den. 273 U.S. 758, 47 S.Ct. 472, 71 L.Ed. 877.
Appellant takes the position that the argument in his brief on the sufficiency of the evidence to support the charge of wantonness also embraces sufficient argument of excessiveness of the verdict. We cannot agree. Since appellant, in his brief, has not 'complained Specifically that the damages assessed were excessive,' there has not been sufficient argument of the question of excessiveness of the verdict. State v. Dunlap, 279 Ala. 418, 186 So.2d 132, 133, supra; State v. Young, 279 Ala. 426, 186 So.2d 140, 141; Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 288--289, 110 So. 312, supra.
Appellant has petitioned this court to order the United States Fire Insurance Company to 'post supersedeas bond to supersede the judgment of $30,000 heretofore entered in this cause.' The petition alleges that appellant is covered by a liability policy issued by the insurance company. The company, appearing specially, has filed a plea in abatement and an answer to the petition. Two of the grounds assigned in each of these instruments for dismissal of the petition are that there has been no service of process upon the insurance company and that the company is not a party in the case. Our conclusion is that these grounds have merit and that the petition is due to be dismissed.
There is no question that the insurance company has not been made a party in this case. Its furnishing of counsel for defense of the suit was pursuant to its contractual obligation to do so. Fulfilling this obligation has not made the company a party to the suit.
It is elementary law that in order for a court to have jurisdiction of the person there must be service of process or voluntary appearance.' Ex parte Gunter, 17 Ala.App. 313, 315, 86 So. 146, 147. As said in Alabama Alcoholic Beverage Control Board v. State ex rel. Krasner, 247 Ala. 469, 471, 25 So.2d 30, 32:
In Ex parte Smith, 258 Ala. 319, 322--323, 62 So.2d 792, 794, where there was a proceeding to set aside a judgment by default because of lack of service of process on the defendant, it was said:
From 42 Am.Jur., Process, §§ 3, 4, pp. 6, 7, 8, supra, is the following:
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State v. Long
...281 Ala. 430, 203 So.2d 447. "For other cases to like effect see Alabama v. Ferguson, supra (269 Ala. 44, 110 So.2d 280); Cooper v. Watts, 280 Ala. 236, 191 So.2d 519; Southern Railway Co. v. Edmunds, 280 Ala. 247, 192 So.2d 451. . . ." State v. Ward, supra, 293 Ala. at 519, 306 So.2d at 26......
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...acquiring such jurisdiction is a nullity." 21 C.J.S. Courts § 83 at 123-4 (1940) (footnote omitted), quoted in Cooper v. Watts, 280 Ala. 236 at 240, 191 So.2d 519 at 522 (1966). Neal's attack upon the default judgment entered against him, therefore, appropriately was brought under Rule Wils......
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