East Alabama Exp. Co. v. Dupes

• Decision Date: 01 December 1960
• Docket Number: 8 Div. 17
• Citation: 124 So.2d 809,271 Ala. 504
• Parties: EAST ALABAMA EXPRESS CO. v. Cora Belle DUPES.
• Court: Alabama Supreme Court

Page 809

124 So.2d 809

271 Ala. 504

EAST ALABAMA EXPRESS CO. v. Cora Belle DUPES.

8 Div. 17.

Supreme Court of Alabama.

Dec. 1, 1960.

Camp & Berry, Huntsville, for appellant.

Griffin & Griffin, Huntsville, for appellee.

STAKELY, Justice.

On June 11, 1958, Cora Belle Dupes (appellee) was a passenger in an automobile driven by Doris Ray Hunter as the car was being driven in a westerly direction on Governor's Drive in Huntsville, Alabama. At or near the intersection of Governor's Drive and Seminole Street the automobile in which Cora Belle Dupes was riding was involved in a collision with the truck which was owned by the defendant, East Alabama Express Company, a corporation (appellant).

Cora Belle Dupes filed suit in the Circuit Court of Madison County against East Alabama Express Company, a corporation, the complaint being in two counts. The first count was based on simple negligence in claiming damages for certain physical injuries, mental anguish and loss of pay. The second count was based on the alleged wilful and wanton misconduct of the defendant. The court gave the affirmative charge as to Count two of the complaint.

After the demurrer to the complaint was overruled, the defendant filed a plea of the general issue in short by consent.

The evidence introduced by the plaintiff tended to show that Cora Belle Dupes was injured physically as a result of the collision. The trial of the case resulted in verdict and judgment for the plaintiff in the amount of $4,500. This appeal followed.

Four assignments of error are argued in brief by appellant, all of which are based on rulings of the trial court on the evidence.

I. Doris Ray Hunter, a witness for the plaintiff, testified that she talked to the driver of the truck, Edward Warren, immediately after the accident and as soon as they could get out of the vehicles they were driving. She was asked the following question, 'Now, I will ask you if this driver of the defendant made any statement to you as to how the accident happened?' An objection was interposed on behalf of the defendant on the grounds that such question called for immaterial, incompetent and hearsay evidence. The court overruled the objection.

After the objection was overruled the witness testified that, 'He (referring to the driver of defendant's truck) said he looked off and the impact caused him to look back, or words to that effect.'

We consider that this ruling was without error since it brought out evidence that was a part of the res gestae. Bessierre v. Alabama City G. & A. R. R. Co., 179 Ala. 317, 60 So. 82; Nelson v. State, 130 Ala. 83, 30 So. 728.

While we adhere to what we have said, there is another reason why the ruling does not constitute reversible error. Later on, during the trial, Edward Warren, driver of the defendant's truck, took the stand in behalf of the defendant and on direct examination gave substantially, if not exactly, the same account of the accident. Testimony apparently illegal upon admission may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred. Osborn v. Grizzard, 251 Ala. 275, 37 So.2d 201; Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

We quote from the record in this connection as follows:

'Q. After seeing the light change from red to green, what, if anything, did you do, Mr. Warren? A. I glanced in my rear view mirror and back at the road, and, evidently the traffic I taken it, was moving on, and when I looked back the tail-lights of the car were sticking up there, and when I slammed on the brake I didn't have time to stop.

'Q. And you ran into the rear of Mrs. Hunter's car? A. Yes, sir.'

II. The second and third assignments of error are based on the rulings of the court in overruling objections to two questions asked on the direct examination of the plaintiff's witness, Mrs. Doris Ray Hunter. After objection to the question asked Mrs. Hunter, 'Was your car in a drivable condition after the accident?', counsel for the plaintiff said, 'It is just to show the force of the impact.' Counsel for the plaintiff then said, 'Let me rephrase the question, Could you drive it away from the accident or was the damage such that you were not able to drive it away after the accident?' To this question the witness replied, 'I could not drive it away from the scene of the accident.

The witness was then asked, 'Could you tell us why, just what the damage was?' To this question the witness then replied, 'Because of the condition caused by the impact the car was not in a drivable condition.'

The question was then asked, 'Did you have a wrecker?', to which the witness answered, 'Yes.'

Tendencies of the evidence showed that the plaintiff sustained injuries associated with a certain amount of force (a whiplash and a fracture). The car in which the plaintiff was riding was struck in the rear by the truck. The type of damage and whether the car could be driven away after the accident both go to show the force of the impact. There was no error in these rulings.

III. The plaintiff was asked on redirect examination if 'Following the accident on June 11, 1958, did you worry about the injuries you sustained in this accident and the state of your health as a result thereof?' The court overruled the objection interposed in behalf of the defendant based on the grounds that the question called for immaterial, irrelevant and illegal evidence and that it called for a conclusion and opinion of the witness. After the court overruled the objection the witness was allowed to testify, 'Yes, I still worry a great deal about what will be the ultimate result of it.'

In the case of McGuff v. State, 248 Ala. 259, 27 So.2d 241, the majority opinion held that an offer by the defendant on direct examination to prove his purpose in proceeding to a certain place to illustrate his conduct when he arrived there, was not admissible, since this was proof of his uncommunicated motive in going there. However, it was...