Dean v. Johnston

• Decision Date: 11 January 1968
• Docket Number: 5 Div. 840
• Citation: 206 So.2d 610,281 Ala. 602
• Parties: T. W. DEAN, d/b/a Dean Motor Co. v. Georgia Anne JOHNSTON.
• Court: Alabama Supreme Court

Page 610

206 So.2d 610

281 Ala. 602

T. W. DEAN, d/b/a Dean Motor Co. v. Georgia Anne JOHNSTON.

5 Div. 840.

Supreme Court of Alabama.

Jan. 11, 1968.

H. Gerald Reynolds, Alexander City, for appellant.

Reneau & Reneau, Wetumpka, for appellee.

HARWOOD, Justice.

This is an appeal from a judgment in favor of the defendant in a suit claiming damages growing out of a collision between the plaintiff's tractor truck with a house trailer attached thereto, and an automobile driven by the defendant.

The tractor truck was being driven by Bobby J. Hawkins, a servant, agent, or employee of the plaintiff at the time of the collision.

The defendant's demurrer to the complaint being overruled, the pleading was thereafter in short by consent, etc.

Hawkins testified that the tractor truck was 7 or 8 feet wide, and the house trailer was 10 feet wide. He had a permit for a wide load vehicle for this trip. He came down a 'small' hill at a speed of 35 miles per hour, and entered upon a bridge which was approximately 20 feet wide. While on the bridge he saw an automobile driven by the defendant approaching from the opposite direction about 300 feet away and hurried to clear the bridge. His rig had cleared the bridge by some 30 feet when the oncoming automobile started skidding and he drove to his right side of the road. The defendant's automobile slid across the center line of the roadway approximately 4 feet and struck the house trailer. Considerable damage was done to the truck and trailer as a result of the collision. Hawkins testified that he examined the tires of defendant's automobile after the accident and they were all slick.

The defendant testified that it had been raining on the day of the accident, and was still overcast when the collision occurred When she first saw the truck approaching, it was some 450 feet away, and about 150 feet from the bridge. The truck was over the center line of the bridge as it crossed. She tried to slow down but her automobile began sliding and she did not know what happened after that, though the truck was completely across the bridge when the collision occurred. The defendant testified that only one of her tires was slick.

During the cross examination of Hawkins, he was asked if he had ever been arrested for violation of the rules of the road. Objection was interposed by the plaintiff. At this point, the jury was excused and a six-page colloquy between respective counsel and the court ensued.

The jury was returned, and the court announced he was overruling the objection, but 'I'll give you an exception to my ruling where you can review it.'

The witness was then asked if he had ever been arrested or charged with any violation of the rules of the road. The witness replied 'about three times in three years' for speeding.

The witness was asked if he had ever been caught for speeding while he was driving one of Mr. Dean's vehicles. Objection to this question being overruled, the witness replied he had been arrested one night prior to the accident while driving an automobile not a truck, belonging to Mr. Dean, and Mr. Dean had paid his fine in this instance. Otherwise, Dean had not been informed of any of his previous arrests.

It appears from remarks by the court that the rulings were induced by the fact that since the pleading was in short by consent, the evidence sought would be material to the question of whether Dean, the plaintiff, was guilty of contributory negligence because of the employment of an incompetent servant, and that the evidence sought went to this question.

In the first place, the questions as framed sought evidence of no probative value, in that they sought evidence as to whether Hawkins had ever been 'arrested' or 'charged' with speeding, or 'caught' speeding.

While a witness' prior Conviction for a crime involving moral turpitude may be shown as going to his credibility (see Sec. 734, Title 7, Code of Alabama 1940), a mere 'arrest' or 'charge' or being 'caught' possesses no probative value to prove his guilt of any offense, and such evidence is meaningless and obscure. As stated in Meador v. State, 37 Ala.App. 573, 72 So.2d 418:

'This very obscurity does however furnish a nourishing medium for the production of ineradicable prejudice.'

The above observations would in our opinion necessitate a reversal of this judgment.

But even had the questions been properly framed so as to elicit testimony of Hawkins' prior Convictions for speeding, error would have ensued had objections to such line of questions been overruled. In the first place, a conviction for speeding would not involve moral turpitude.

Further, under a plea of contributory negligence the issue would be whether Hawkins' conduct was such as to constitute negligence...