Ex parte Houston County
| Decision Date | 29 July 1983 |
| Citation | 435 So.2d 1268 |
| Parties | Ex parte HOUSTON COUNTY. (In re Carlos Alfredo PONCE, etc., et al. v. HOUSTON COUNTY, Alabama). 82-624. |
| Court | Alabama Supreme Court |
William C. Carn, III and William L. Lee, III of Lee & McInish, Dothan, for petitioner.
Rufus R. Smith, Jr. of Farmer, Price, Espy & Smith, Dothan, for respondents Luis Ponce and Harold D. Brown.
Steven K. Brackin of Lewis & Brackin, Dothan, for respondent Herbert Deal, Jr.
This petition for writ of mandamus arises from a pending action for injuries received in a one-car accident. The trial court granted plaintiffs' motion in limine precluding any evidence of the speed or reckless operation of plaintiffs' vehicle "at any time other than up and until the immediate time of the accident." The defendant Houston County brings this petition seeking to have this Court direct the trial court to permit the defendant to offer evidence of the speed or reckless operation of the plaintiffs' car prior to the moment of the mishap itself.
Plaintiffs are two minors, Carlos Alfredo Ponce and Charles R. Brown, and the father of the deceased minor, George Lindsey Deal. The three boys occupied an automobile involved in a one-car accident on January 23, 1981, on the Old Taylor Road in Houston County, Alabama. Charles Brown was driving the car.
Ponce and Deal's father (hereinafter Deal) sued Brown for wanton operation of the car and his father for negligent entrustment. The parties have reached a pro tanto settlement on these claims. The case before us involves counts in amended complaints by Ponce and Deal and in a complaint filed by Brown against Houston County for improper maintenance of Old Taylor Road. Houston County defended, inter alia, on contributory negligence and assumption of risk. The cases were consolidated for trial.
The plaintiffs filed their motion in limine, and the court granted the motion in the terms requested, ordering:
"That the Defendants, their counsel, and their witnesses refrain from introducing any evidence, either directly or indirectly, by direct examination or cross examination, or by mentioning or alluding to, with regard to any alleged speeding of the Brown vehicle or reckless driving of the Brown vehicle or other circumstances or conditions concerning the Brown vehicle at any time other than up and until the immediate time of the accident complained of in Plaintiffs' Complaint, without further order of this Court."
The court found that any evidence of speed or recklessness at any time other than the immediate time of the accident would be too remote and irrelevant.
The facts as revealed in depositions included in the record are as follows. On the night of the accident, plaintiffs were engaged in following or chasing another car occupied by four minors: Mike Palmer, Dickey Lillard, Ronnie Goss, and Roger Whatley, the driver. Palmer, Lillard, and Whatley gave depositions regarding the events leading up to the accident. As the boys in the Whatley car were leaving a local pizza parlor, the boys in the Brown car pulled out behind them and started following them. They drove through several residential neighborhoods, hoping that Brown and the others would grow tired of following them.
When this did not happen, Whatley proceeded to the highways and tried to leave the other car behind: he was driving a Pontiac Trans-Am, a more powerful car than the Ford Maverick driven by Brown. Although Brown would lose ground on straightaways, he managed to regain it on curves and in traffic. The boys testified that they were driving 90 to 95 miles per hour or more and the Brown car stayed relatively close behind them.
Whatley turned off the highway onto Bob Hall Road and from there onto Old Taylor Road. He slowed down for a moment hoping that Brown had not seen him make the turn and would continue on the other road. He saw in the rearview mirror a car make the turn, and he could tell by the light of a streetlight that it was Brown's car. The boys testified variously that it was one hundred to four hundred yards behind them at that time.
Whatley accelerated. Approximately a mile to a mile and a half down the road they reached a curve which turned to the right. All three of the young men testified on deposition that they were going 90 to 95 miles per hour as they rounded the curve, and that they themselves almost wrecked. Lillard testified that the driver behind them was trying to catch them and estimated that the second car was going 90 to 95 miles per hour on the straightaway of Old Taylor Road before the curve where the accident happened. Palmer testified that he saw headlights flash on the trees as though the car had turned, but none of the boys saw it wreck. Deal died of injuries received in the wreck. Ponce and Brown were severely injured and state that they have no recollection of the events leading to the accident.
Respondents, the plaintiffs Ponce, Deal, and Brown, argue that all of this testimony is irrelevant as being too remote because none of the boys in Whatley's car saw Brown's car as it entered the curve or could estimate its speed at that time.
Admission of evidence as to the speed or manner of operation of an automobile prior to the time of an accident is a matter for the trial court's discretion. Deese v. White, 294 Ala. 123, 313 So.2d 166 (1975); Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810 (1971); Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436 (1968); Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (1954); Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289 (1946); Whittaker v. Walker, 223 Ala. 167, 135 So. 185 (1931); Davies v. Barnes, 201 Ala. 120, 77 So. 612 (1917). This discretion should be exercised in light of the facts of the case and the probative value of the contested evidence as opposed to its prejudicial effect.
As stated in the leading treatise on the law of evidence in Alabama:
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