Ex parte Alabama Power Co.
Decision Date | 01 April 1983 |
Citation | 431 So.2d 151 |
Parties | Ex parte ALABAMA POWER COMPANY. (Re: Walter Lee SMITH and Mary Ruth Smith v. ALABAMA POWER COMPANY). 81-616. |
Court | Alabama Supreme Court |
C. William Gladden, Jr., and James A. Bradford of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for petitioner.
Alex W. Newton and Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for respondent.
This is a petition for the writ of mandamus by Alabama Power Company, asking this court to grant the following relief: That the writ of mandamus issue directed to the Honorable Josh Mullins, as Circuit Judge of the Tenth Judicial Circuit, ordering and requiring him to enter judgment in favor of Alabama Power Company and to deny respondents' motion for new trial in accordance with the opinion of this court in Alabama Power Company v. Smith, 409 So.2d 760 (Ala.1981).
The following pertinent facts are found in the record: Respondents Walter Lee and Mary Lou Smith's suit against Alabama Power Company was tried to a jury in the Jefferson County Circuit Court. On 2 October 1981, a verdict was rendered in favor of the Smiths. During the course of the trial, Alabama Power filed motions for a directed verdict, and JNOV, and, in the alternative, for a new trial; all of which were denied. Alabama Power then appealed to this court.
On appeal of that case, the issue presented was whether petitioners had presented sufficient evidence to establish that Alabama Power exerted sufficient control over the coal scales on which respondent Walter Lee Smith fell, which fall resulted in injuries to him, as to satisfy the duty element of a negligence action. Regarding that issue this court found:
Our holding in that case read as follows:
Shortly after the decision in that case was released, on 5 October 1981, the Honorable Josh Mullins, the trial judge, entered the following order:
To allow plaintiffs to file an application for rehearing with this court, Judge Mullins vacated his order of 5 October 1981.
In their application for rehearing, plaintiffs vehemently urged this court to reconsider and withdraw its opinion, stating as follows:
"It is shocking that this court would assume the role of an advocate in attempting to make the testimony say something other than what was said by the parties and witnesses under oath."
Upon denial of plaintiffs' application we stated:
Several weeks after our decision to deny rehearing, respondents filed a motion for new trial. That motion was set for hearing on 11 May 1982.
On 22 April 1982, the Smiths served notice to take the oral deposition, for the purpose of discovery, of an employee of Alabama Power. It then filed a motion to quash the notice, which was denied on the same day. On the following day Alabama Power filed a motion requesting the trial court to enter judgment in its favor. Its request for a hearing on this motion prior to the date set for the deposition of its employee was denied.
Alabama Power then petitioned this court for the writ of mandamus. On 6 May 1982 this court ordered all proceedings in the circuit court stayed pending our decision regarding this petition.
The petition for the writ of mandamus presents the issue, whether, in Alabama Power Company v. Smith, supra, there was a final adjudication regarding petitioner's control over the coal scales on which respondent Walter Smith fell. The Smiths contend that the motion for new trial is, in light of our opinion in this case, procedurally proper.
Alabama Power Company v. Smith, was brought to this court on an evidentiary issue. In Casey v. Jones, 410 So.2d 5 (Ala.1982), we clarified the distinctions between evidentiary challenges as follows:
"For the sake of clarity, we restate the familiar: Other than objections to admissibility, evidentiary challenges are divided into two separate and distinct categories 1) sufficiency of the evidence, raised by motions for directed verdict and for J.N.O.V. and measured by the objective 'scintilla' rule; and 2) weight and preponderance of the evidence, raised by motion for a new trial and measured by the more subjective 'palpably wrong, manifestly unjust' standard."
The Smiths contend this case was a "weight of the evidence" case, relying on Garmon v. King Coal Co., Inc., 409 So.2d 776 (Ala.1982). There this court had occasion to consider the effect to be given an appellate court determination, on further litigation, that a jury verdict was against the great weight and preponderance of the evidence. The decision of this court followed the reasoning in Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756, 757 (1937). We quoted that court's opinion as follows:
" "
In Garmon it was clearly pointed out that we were not considering the "sufficiency of the evidence."
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