Donaldson v. Buck
Decision Date | 11 June 1976 |
Parties | James F. DONALDSON v. Nellie Jean BUCK. SC 939. |
Court | Alabama Supreme Court |
J. Wm. Thomason, Bessemer, for appellant.
Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
The appellant, James F. Donaldson, brought suit against Nellie Jean Buck, appellee, for damages resulting from an automobile collision.
The collision occurred on a bridge on Highway 52 in Shelby County. The bridge was approximately thirty feet long and the traveled portion was about seventeen feet wide. In lieu of side rails the bridge only had a small concrete curbing on either side. The highway leading to the bridge was paved and slightly wider than the bridge.
On a misty, rainy afternoon appellant approached the narrow bridge from one end at approximately twenty miles per hour. The appellee approached from the other end at approximately twenty-five miles per hour. The road was slippery and wet and the vehicles came into contact somewhere on the bridge. The appellant's vehicle came to rest in the creek off of the bridge on its side. The appellee steered her vehicle clear of the bridge and the vehicle came to rest on the highway about five car lengths from the end of the bridge.
The jury found for the defendant-appellee. Motion for new trial was overruled.
Appellant argues that it was reversible error for the trial court to allow comments by appellee's counsel during the closing arguments to the jury on the failure of appellant to call Dr. Wilson and Mr. Banderman as witnesses.
As to Mr. Banderman, the record shows:
It is the general rule that a party cannot comment in argument upon the failure of his opponent to call a particular witness if the witness is equally accessible to both parties. City of Birmingham v. Levens, 241 Ala. 47, 200 So. 888 (1941).
It was stipulated however that Banderman was a passenger in appellant's vehicle at the time of the accident and was injured. It was further stipulated that Banderman employed appellant's counsel to cause suit to be filed against appellee. The suit was settled for $2,000.00.
Thus, the question narrows to whether under these circumstances Banderman was equally accessible, within the meaning of the law, to both parties.
In Carter v. Chambers, 79 Ala. 223 (1885), this court observed:
.
In Waller v. State, 242 Ala. 1, 4 So.2d 911, the defendant was tried for the offense of robbery. The State attempted to show flight. To refute flight the defendant testified that on the night of the alleged offense he spent the night with his father in the neighborhood of the occurrence. The father did not testify at trial. In closing arguments to the jury the solicitor commented that it was significant that the defendant did not call his father. The court reasoned that
It can therefore be seen that being amenable to process is not the sole criterion for determining 'equal availability' within the meaning of the rule.
This court in Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548, addressed this subject as follows:
'. . . If these defendants were operating the gas plant on the occasion in question, the facts as to the manner of its operation were in the peculiar keeping of persons who, it may be assumed, were friendly to the defendants. In these circumstances it cannot be said that the argument which the court permitted to go to the jury, if it did permit any part of it, was unfair or improper. . . .
'. . . It was said by Lord Mansfield in Blatch v. Archer, Cowp. 66:
"It is certainly a maxim that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and in the power of the other to have contradicted.'
'Prof. Wigmore says that the propriety of the inference that the party who fails to bring before the tribunal some circumstance, document, or witness, when either he or his adversary claims that the facts would thereby be elucidated, fears to do so, and that this is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party so failing--this inference he says is most natural. 1 Wigm. Ev. § 285.
'In 2 Chamb.Mod.Ev. § 1075, it is said:
"In proportion as it is to the interest of the party to submit the evidence of an available witness, the jury are entitled to infer from his neglecting to do so that his evidence, if produced, would not be favorable to the party."
It would seem under the authorities cited that reversible error has not been shown in allowing the argument in question. The witness had employed appellant's counsel to prosecute a suit against appellee. It is not unreasonable to conclude that the witness would be friendly toward appellant and unfriendly toward the appellee. Certainly, we cannot conclude otherwise on this scant record.
We see no need to address ourselves to the assertion of counsel that the witness was sick or the counter-assertion by opposing counsel seeming to contradict that fact. The trial judge was in a better position to weigh these claims than an appellate court. We cannot say that the witness was equally available as that term is used in our cases.
As for the comments concerning the failure to call Dr. Wilson as a witness, it appears that Dr. Wilson was equally available to both parties. Thus, it was...
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