Faulkner v. Gilchrist

• Decision Date: 06 October 1932
• Docket Number: 3 Div. 18.
• Citation: 225 Ala. 391,143 So. 803
• Parties: FAULKNER v. GILCHRIST.
• Court: Alabama Supreme Court

143 So. 803

225 Ala. 391

FAULKNER v. GILCHRIST.

3 Div. 18.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by Carrie Gilchrist, as administratrix of the estate of Frank Gilchrist, deceased, against Ralph U. Faulkner. From a judgment for plaintiff, defendant appeals.

Affirmed on condition of remittitur, otherwise reversed and remanded.

Rushton Crenshaw & Rushton and Weil, Stakely & Cater, all of Montgomery, for appellant.

W. O Mulkey, of Geneva, and Hill, Hill, Whiting, Thomas & Rives of Montgomery, for appellee.

GARDNER J.

The suit is under the homicide statute (Code 1923, § 5696) for the death of plaintiff's intestate (Frank Gilchrist) caused by collision of his car with that of defendant. There was judgment for plaintiff, and defendant appeals.

We consider the assignments of error in the order of their presentation in brief. It is not questioned that under our decisions (Cooper v. Auman, 219 Ala. 336, 122 So. 351; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Harris v. Snider, 223 Ala. 94, 134 So. 807; Citizens' L., H. & P. Co. v. Lee, 182 Ala. 561, 62 So. 199), as well as the authorities generally (Notes 56 A. L. R. 1462, 74 A. L. R. 860) the plaintiff was legally justified in a request for the qualification of the jury, and we are not persuaded prejudicial error intervened in the remark of the court (subsequently withdrawn) in making a correction in the name of the insurance carrier. The words "that is the insurance company," following the name New Amsterdam Casualty Company, added nothing to the information of the jury. One form of insurance is well known to be "casualty insurance" (Funk-Wagnalls' New Standard Dictionary, page 1274), and considered in the light of the jury's common sense and every day observation and experience, the very name itself indicated that it was an insurance company; and we are not convinced that this inadvertent expression by the court resulted in any more harm to defendant than would the qualification of the jury as to the insurance carrier called by its proper name. Harris v. Snider, supra; Cooper v. Auman, supra.

The weight of the evidence tended to show that Gilchrist was under the influence of intoxicants at the time of the accident, and, that, therefore, his driving his car on the highway under these circumstances was violative of law (Acts 1927, p. 365, § 48), and constituted negligence on his part. Defendant's theory was that Gilchrist was intoxicated and driving in a "zigzag" fashion on the highway, and when it appeared he was going to drive into him he "pulled to the left" threw his "car to the left and tried to go in front of him," and insisted there was no other course open unless he went in a ditch. The paved road was twenty feet wide with dirt shoulders three or four feet wide safe for travel on either side and then a ditch two or three feet deep.

Plaintiff's evidence was also to the effect that, a few feet from the point of collision, the old graveled road intersected the paved highway on defendant's right and was available for use, but defendant insists he did not see or notice this road, and never had his attention directed thereto. Plaintiff's case largely rested therefore (though not entirely so) upon the theory of subsequent negligence and wantonness.

Appellant insists reversible error was committed in giving for plaintiff charges 1, 2, and 3. It is argued that charge 3 assumes defendant's negligence, which was a jury question (White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479), and likewise assumes the peril of plaintiff's intestate and defendant's knowledge thereof. 45 Corpus Juris 713. But we are not in accord with this interpretation of the charge. It was addressed to the question of contributory negligence and its effect on plaintiff's right of recovery. It stated an abstract proposition of law without applying it to the facts (Karpeles v. City Ice Co., 198 Ala. 449, 73 So. 642; Anthony v. Seed, 146 Ala. 193, 40 So. 577; Branson's Instructions to Juries [2d Ed.] p. 25), and the word "if" in the charge serves to qualify all that follows. And it is argued that all the charges place too great a burden on defendant in that they make it imperative that defendant use all preventive means at his command to avoid the injury after the discovery of the peril, while the degree of care to be observed by defendant was that care a reasonably prudent man would exercise under like circumstances, or, to state it differently, what an ordinarily prudent person would have done under the same or similar circumstances to avoid the injury. White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479; Brown v. Bush, 220 Ala. 130, 124 So. 300; Norwood Transp. Co. v. Bickell, 207 Ala. 232, 92 So. 464; Cooper v. Agee, 222 Ala. 334, 132 So. 173; Mobile L. & R. R. Co. v. Forcheimer, 221 Ala. 139, 127 So. 825; Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642; Gothard v. A. G. S. R. Co., 67 Ala. 114; 44 Corpus Juris 992.

We are not in disagreement with counsel for appellant as to the degree of care required, but only with the proper construction of these charges. They do not require of defendant that he use all preventive means at his command, but only hold him to liability in the event he negligently fails to use such means. The basis of these charges in this regard is defendant's negligence in failing to use the proper preventive means at his command. Aware of the peril he should make such observation as an ordinarily prudent person under like circumstances would make to discover preventive means, or seeing a method of prevention he should exercise such care to avail himself thereof as an ordinarily prudent person under similar circumstances would do. And failing in these respects, he would be guilty of negligence. The charges do not attempt to define the negligence, but they do assert that the failure to use proper means of prevention must be a negligent failure. So, as argued by counsel, one placed in a position of sudden peril, without time for the exercise of mature and sound judgment is not by the law held to the usual rule of accountability (45 Corpus Juris 713), but this is but another way of arguing that he was guilty of no negligence in that respect. And upon that question the jury could not have been misled as the trial court gave numerous charges at defendant's request embodying that principle of law.

Nor are the charges subject to criticism for failure to negative intestate's freedom from negligence after he became conscious of his own danger, or negative such consciousness. This was defensive matter, the burden of proof of which was on defendant (Southern Rwy. Co. v. Stewart, 153 Ala. 133, 45 So. 51; Birmingham R. L. & P. Co. v. Ætna Accident & Liability Co., 184 Ala. 601, 64 So. 44), and no such proof was offered. This criticism therefore deals in the abstract. These charges are patterned after those approved by the Court of Appeals in Birmingham R., L. & P. Co. v Friedman, 16 Ala. App. 221, 77 So. 59, and which appear to be sustained by the language of the cases of Memphis & Chattanooga R. R. Co. v. Martin, 131 Ala. 269, 30 So. 827, and Southern Express Co. v. Roseman, 206 Ala. 681, 91 So. 612. The court committed no reversible error in giving...