Coulter v. Holder

• Decision Date: 11 November 1971
• Docket Number: 8 Div. 402
• Citation: 254 So.2d 420,287 Ala. 642
• Parties: Wanda Gale COULTER v. Ruby G. HOLDER. Billy Austin COULTER v. Ruby G. HOLDER. , 402--A.
• Court: Alabama Supreme Court

Page 420

254 So.2d 420

287 Ala. 642

Wanda Gale COULTER v. Ruby G. HOLDER.

Billy Austin COULTER v. Ruby G. HOLDER.

8 Div. 402, 402--A.

Supreme Court of Alabama.

Nov. 11, 1971.

Ford, Caldwell, Ford & Payne, and Robert L. Hodges, Huntsville, for appellants.

Watts, Salmon, Roberts & Stephens, Huntsville, for appellee.

LAWSON, Justice.

On October 23, 1966, Wanda Coulter, then a minor, was riding as a passenger in an automobile being driven by Larry Patterson on Highway 87 in Madison County when it collided with an automobile being driven by Mrs. Ruby G. Holder.

There were two other passengers in the Patterson automobile, Brenda Coulter, Wanda's twin sister, and Larry Preston.

Wanda Coulter, suing as a minor through her father and next friend, filed a suit against Mrs. Holder to recover for personal injuries. Billy Austin Coulter, the father of Wanda and Brenda, filed suit against Mrs. Holder claiming damages for medical expenses incurred in behalf of his daughters and for loss of their services, companionship and society.

The complaint in each case contained a single count charging the defendant, Mrs. Holder, with negligence. In each case Mrs. Holder pleaded: '* * * in short by consent the general issue, with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action, to have effect as if so pleaded.' Issue was joined on said pleas and, by agreement, the two cases were consolidated for trial.

There was a jury verdict in favor of the defendant in each case. Judgments were rendered in accordance with the verdicts.

After their separate motions for a new trial were overruled, each of the plaintiffs on April 29, 1970, appealed to this court. The two appeals were submitted here on one record on April 27, 1971, without an order of consolidation.

The appeal of Billy Austin Coulter should have been taken to the Court of Civil Appeals since the 'amount involved, exclusive of interests and costs,' does not exceed $10,000. Act 987, approved September 12, 1969, Acts of Alabama 1969--70, Vol. II, p. 1744. The order submitting the appeal of Billy Austin Coulter to this court is vacated. The transcript of the record will be transferred by the Clerk of this court to the Court of Civil Appeals after disposition has been finally made by this court of the appeal taken by Wanda Coulter. This procedure is in accordance with the action taken by this court on July 14, 1971, in 6 Div. 851, Ruby B. Hamner v. Mutual of Omaha Insurance Company, a Corporation. See Supreme Court of Alabama Minute Book 122 at p. 322.

It appears from the address of the assignments of error that they were made 'separately and severally,' hence the rule that denies effect to joint assignments unless good as to all appellants would not be applicable even if there was more than one appellant in this court. See Elmore v. Cunninghame, 208 Ala. 15, 93 So. 814.

By an appropriate assignment of error, the appellant in this court, Wanda Coulter, asserts that the trial court erred in giving at the request of the defendant below her written Charge Number Twelve, which reads:

'The Court charges the jury that if you are reasonable satisfied that the automobile in which the plaintiff, Wanda Gale Coulter, was riding as a guest was being operated by Larry Patterson in a negligent manner and at an excessive and reckless rate of speed, and that the plaintiff knew it was being so operated and that she had knowledge that so to drive was attended with great danger and that she negligently remained in the automobile without making any remonstrances and that as a proximate result of Larry Patterson's negligent operation of the vehicle and the plaintiff's negligence in thus riding in the automobile she received the injuries complained of, then you cannot return a verdict against the defendant.'

Defendant's written Charge Number Twelve could have been refused without error in that it is not hypothesized on a finding 'from the evidence.' But we will not reverse for the giving of that charge if such is its only defect. In Locklear v. Nash, 275 Ala. 95, 152 So.2d 421, it was said:

'It is the established rule in this state that it is not reversible error either to give or to refuse a charge which fails to hypothesize the jury's belief (in criminal cases) or reasonable satisfaction (in civil cases) 'from the evidence.' * * *' (275 Ala., 98, 152 So.2d 423)

Patterson's negligence, if any, could not be imputed to Wanda Coulter, his guest passenger, as there is no proof that Wanda had any authority over the car's movement in any manner. Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530, and cases cited; Williams v. Pope, 281 Ala. 382, 203 So.2d 105.

But one riding in an automobile driven by another, even though not chargeable with the driver's negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable or ordinary care to avoid injury. Walker v. Bowling, 261 Ala. 46, 72 So.2d 841; King v. Brindley, 255 Ala. 425, 51 So.2d 870, and cases cited.

The trial court in its oral charge correctly instructed the jury as to the general principles alluded to in the last two preceding paragraphs.

But written Charge Number Twelve, given at the request of the defendant, is couched in different language and appellant says, in effect, that the trial court erred to reversal in giving that charge in that it is abstract because it is hypothesized on the jury's being reasonably satisfied that certain facts existed when the evidence adduced did not even warrant a reasonable inference of the existence of those facts.

An instruction based partly or entirely on a state of facts not appearing in the evidence has been held to be abstract. Humphrey v. Boschung (Ex parte Boschung and Garrison), 287 Ala. 600, 253 So.2d 769; Pappas v. Alabama Power Co., 270 Ala. 472, 119 So.2d 899; State v. Ingalls, 277 Ala. 562, 173 So.2d 104; Allen v. Hamilton, 109 Ala. 634, 10 So. 903; Garrett v. Holloway, 24 Ala. 376.

We have said that the giving of an abstract charge, one hypothesized on facts which had no support in the evidence, does not constitute reversible error unless it appears from the whole record that the charge did in fact mislead the jury to the appellant's prejudice. Ex parte Boschung and Garrison, Supra; Locklear v. Nash, Supra; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.

But reversals have resulted where this court has determined from an examination of the record that the jury was misled because of the giving of such an abstract charge. Herring, Farrell & Sherman v. Skaggs, 73 Ala. 446; Beck v. State, 80 Ala. 1; Goldsmith v. State, 86 Ala. 55, 5 So. 480; Goldsmith & Davis v. McCafferty 101 Ala. 663, 15 So. 244. See Lasseter v. King, 249 Ala. 422, 31 So.2d 588. In the Skaggs case, Supra, it was said:

'* * * The instructions to the jury upon this point may state a correct legal proposition, but they are without evidence to support them; they are abstract. It is a rule of this court, that an abstract charge, asserting a correct proposition of law, is not an error for which a judgment will be reversed, unless we are reasonably convinced that it must have misled the jury. (Authorities cited) There can be no doubt that the jury were misled by the instruction to which we have referred; the verdict is convincing.

'The judgment is reversed and the cause remanded.' (73 Ala., 455--456)

We have reviewed the transcript of the evidence with care and are constrained to the conclusion that the evidence, when construed in the light most favorable to the defendant, appellee, does not support a reasonable inference that Wanda Coulter knew the Patterson automobile was being operated 'in a negligent manner and at an excessive and reckless rate of speed,' or that Wanda 'had knowledge that so to drive was attended with great danger' or that she Negligently 'remained in the automobile without making any remonstrances' or that as a proximate result of Wanda's 'negligence in thus riding in the automobile she received the injuries complained of, * * *.'

In those respects Charge Twelve was abstract and, therefore, should not have been given. We have come to this conclusion fully aware of our holdings to the effect that an instruction is not subject to the objection that it is abstract when there is any evidence, however slight, on which to predicate it. Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674; Knowles v. Ogletree, 96 Ala. 555, 12 So. 397; Hair v. Little, 28 Ala. 236; Bradford v. Marbury, 12 Ala. 520.

We are also aware of the fact that several witnesses were examined in regard to points on pictures and drawings and these witnesses gave evidence which the jury could comprehend, but which we cannot...