Crenshaw v. Alabama Freight, Inc.

• Decision Date: 06 May 1971
• Docket Number: 6 Div. 581
• Citation: 287 Ala. 372,252 So.2d 33
• Parties: Samuel B. CRENSHAW v. ALABAMA FREIGHT, INC., a Corp.
• Court: Alabama Supreme Court

Page 33

252 So.2d 33

287 Ala. 372

Samuel B. CRENSHAW v. ALABAMA FREIGHT, INC., a Corp.

6 Div. 581.

Supreme Court of Alabama.

May 6, 1971.

Rehearing Denied June 30, 1971.

Second Rehearing Denied Sept. 9, 1971.

George S. Brown, Birmingham, for appellant

Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

COLEMAN, Justice.

The plaintiff appeals from a judgment for the plaintiff for $9,000.00 rendered in accord with the verdict of a jury in an action for the death of plaintiff's three minor children.

It appears that plaintiff and his wife lived in South Carolina during the early years of their married life. The wife obtained a divorce in South Carolina and was awarded custody of the children. She married J. B. Walters and they moved to Alabama taking the children with them.

Plaintiff continued to live in South Carolina. He remarried. There is evidence to effect that plaintiff contributed to support of the children at times and also that he failed so to contribute at times.

One morning the children were riding in an automobile driven by their mother on U.S. Highway 31 in Morgan County, Alabama. As the automobile was crossing a bridge, the car was struck by a tractor-trailer driven by an employee of defendant. The driver of the tractor-trailer and all people in the automobile were killed.

I.

In Count 1 of his complaint, the plaintiff, father of his deceased minor daughter, Deborah, claims damages of defendant for that plaintiff's said daughter was a passenger in an automobile being driven along a public highway on a narrow bridge, and defendant, by its employee, so negligently operated a tractor-trailer unit as to attempt to pass said automobile on said bridge in a 'No Passing' zone and negligently ran into the automobile in which plaintiff's daughter was riding and knocked said automobile through the side of the bridge, thereby causing the automobile to overturn and burst into flames, and, as a direct result thereof, plaintiff's daughter, Deborah, suffered fatal injuries and burns from which she died immediately. Count 2 likewise claims damages for death of plaintiff's daughter, Cindy, and Count 3 for the death of plaintiff's daughter, Cathy.

The court sustained plaintiff's demurrer to all of defendant's pleas except Pleas I and II. Plea I is the general issue. Plea II recites:

'PLEA II

'Plaintiff ought not to recover of this defendant for that:

'The accident made the basis of this action occurred February 23, 1965. Long prior thereto plaintiff deserted his family and his desertion continued until the death of his said minor child as alleged in said count.'

Plaintiff assigns as error the action of the court in overruling plaintiff's demurrer to Plea II. Plaintiff also assigns as error the action of the court in overruling plaintiff's objections to certain evidence offered by defendant in support of Plea II.

We consider first the overruling of plaintiff's demurrer to Plea II. The precise ground of demurrer relied on by plaintiff is not clearly pointed out in argument. Plaintiff relies on Proposition I which recites that: 'The want of capacity of the plaintiff to bring the action can only be raised by a plea in abatement and such capacity is admitted by a plea to the merits.'

Plaintiff says in brief that defendant, having filed Plea I, was in no position to raise the issue of plaintiff's capacity to bring the suit by filing Plea II.

Plaintiff's argument appears to be to effect that Plea II is a plea in abatement while Plea I is a plea in bar; and, therefore, defendant cannot defend on the allegations of Plea II because the defendant, by pleading in bar, waived the right to plead in abatement.

We quote from two opinions of this court as follows:

'Without inquiring into the weight of this objection, it will be sufficient to say, that the defendant by pleading the general issue at the same time, waived his plea in abatement.' Wilson v. Oliver, 1 Stew. 46, 47.

'(16) The nature of a plea is determined by its substantive allegations and its prayer, but not its form. § 9472, Code.

'(17) Considering the substance of the plea as well as its prayer, it is apparent that it does not undertake to plead matter in bar. The prayer is against further maintenance, and the substance goes only to the time of the institution of the suit. It is therefore a plea in abatement. Other pleas filed at the same time were in bar. When this is done, plaintiff may either move to strike the plea in abatement or treat it as a nullity. (Citations Omitted).' Westchester Fire Ins. Co. of New York v. Green, 223 Ala. 121, 126, 134 So. 881, 885.

Plaintiff's contention comes to the proposition that defendant should not have been allowed to defend under Plea II because it is a plea in abatement filed simultaneously with a plea in bar. The jury, however, did not find for the defendant on either Plea I or Plea II, but returned a Even if Plea II were a plea in abatement, overruling demurrer thereto is without injury to plaintiff according to the holding of this court in Holley v. Younge, 27 Ala. 203, where plaintiff brought an action on a promissory note for $1,000.00. The defendant filed five pleas: 1st, non assumpsit; 3rd, payment; 4th, set-off; and 5th, pendency of another action. The second plea it is not necessary to notice. Plaintiff demurred to the fifth plea and the court overruled plaintiff's demurrer. Plaintiff recovered verdict and judgment for $839.77, from which he appealed and assigned for error, among other rulings, the overruling of his demurrer to the fifth plea. This court affirmed. In holding that overruling plaintiff's demurrer to the fifth plea was not reversible error, this court said:

verdict for the plaintiff for $9,000.00; and, in these circumstances, the plaintiff did not sustain any injury by the action of the court in overruling plaintiff's demurrer to Plea II. In Plea II, defendant asserts that 'Plaintiff ought not to recover,' but the jury found that plaintiff was entitled to recover.

'The fifth plea averred the pendency of another action for the same cause, between the same parties, and was matter pleadable only in abatement.--1 Saund. Pl. (5 Am. edit.) 20. The proper course, when a plea in abatement is pleaded with a plea in bar, is to strike it out on motion.--Hart v. Turk, 15 Ala. 675. But, if it could have been taken advantage of by demurrer, the error of the court in overruling it will not avail the appellant, as the record shows that the action was not abated, but a judgment rendered in his favor, which could not have been the case had he not succeeded on that plea; and he therefore cannot have sustained any injury by the action of the court upon the demurrer.' (27 Ala. at 207)

See also: Odum v. Coldwell, 21 Ala.App. 74, 105 So. 398.

Consideration of Plea II could end here except for the assignments in which plaintiff asserts that the court erred in overruling plaintiff's objections to evidence offered by defendant and admitted by the court in support of Plea II. Plaintiff's Assignments 8, 11, 12, and 13 present the rulings on this evidence.

Assignment 8. Plaintiff called as a witness the manager of the funeral home which had prepared the bodies of the children for burial. On direct examination the plaintiff elicited from the witness certain details as to the condition of the bodies found at the scene after the wreck. Apparently, the witness testified on cross-examination with respect to shipment of the bodies of the children as follows:

'Q And sent where? Lancaster, South Carolina?

'A Somewhere in South Carolina. I don't remember.

'Q Mr. Walters bought a nice casket for them, didn't he?

'MR. HOGAN: I object to that. That would be immaterial.

'THE COURT: Overruled.'

Plaintiff assigns the overruling of his objection as error. We note that four questions earlier, plaintiff, on redirect examination had asked the witness what sort of preparation had been made of the bodies of the children.

The 'Mr. Walters' referred to as having bought the casket is the man who had married the mother of the children after her divorce from the plaintiff.

Assignment 11. Plaintiff assigns as error the overruling of his objection to cross-examination of plaintiff's mother as follows:

'Q Don't you know, Mrs. Crenshaw, that they married on February 5, 1961?

'A Who was married?

'Q Buddy and the second Doris? Her name was Doris too, wasn't it?

'A Yes sir.

'Q They were married in February of 1961?

'A Yes sir.

'Q They weren't divorced until--

'MR. HOGAN: I don't see the materiality to all this. It has nothing to do with the support of the children.

'THE COURT: Overruled.'

The 'Buddy' referred to above is the plaintiff.

Assignment 12. Plaintiff assigned as error the overruling of his objection to admission into evidence of defendant's Exhibit A, which is a transcript of the record of the proceedings in the court in Lancaster County, South Carolina, whereby the mother of the three children obtained a decree of divorce from plaintiff on the ground of physical cruelty commited by plaintiff on the wife. The decree ordered plaintiff to make weekly payments for support of the children. It is noted that prior to defendant's offer of its Exhibit A, the plaintiff, before he rested, introduced into evidence, by plaintiff's Exhibit 41, a decree of the South Carolina court which is also a part of defendant's Exhibit A. Plaintiff's Exhibit 41 is a transcript of a decree, which the South Carolina court had entered by consent of the parties, whereby the original divorce decree was modified, and the court ordered that the instant plaintiff, the father of the minor children, shall pay no support but the mother or her second husband, the Mr. Walters mentioned above, may use the children as dependents for tax purposes.

Assignment 13. Plaintiff assigns as error the overruling of his objections to admission into evidence of defendant's Exhibits B, C, D, and E. These four exhibits are also transcripts of proceedings in the South...