Feore v. Trammel

• Decision Date: 18 December 1924
• Docket Number: 1 Div. 313
• Citation: 212 Ala. 325,102 So. 529
• Parties: FEORE v. TRAMMEL.
• Court: Alabama Supreme Court

102 So. 529

212 Ala. 325

FEORE v. TRAMMEL.

1 Div. 313

Supreme Court of Alabama

December 18, 1924

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by Ruby M. Trammel against Esther Feore. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

In action for injuries in automobile collision cross-examination of defendant's witness, to test accuracy of his testimony as to what marks he showed plaintiff's attorney as those of defendant's car held not error.

Count 1 is as follows:

"Plaintiff claims of the defendant $20,000, for that on, to wit, October 26, 1922, the defendant negligently drove an automobile into an automobile in which the plaintiff was riding, at the intersection of Conti and Bayou streets, in the city of Mobile, Ala., and as a proximate result of said negligence on the part of the defendant, the plaintiff was seriously and permanently injured, and caused to suffer great pain, and to permanently lose her sense of smell and taste; that she incurred large expense by way of doctor's bills and medicine, and was caused to lose a great deal of time from her business or work, all to her damage as aforesaid."

On cross-examination defendant's witness Wilson testified that he had gone with plaintiff's attorney to the scene of the accident shortly after it occurred and showed the attorney two marks that looked like a place where an automobile had skidded. Plaintiff then propounded this question, defendant's objection to which was overruled:

"Wait a minute--skidded from the west side of Bayou street--didn't you show me some marks on the west side of Bayou street, which started at least 10 feet north of Conti street, and showed plumb up to that telegraph pole that you were showing me, and say that those were the marks that you concluded had been made by the Maxwell car?"--the car in which defendant was riding.

To the question asked the witness Griffin whether he saw a car against the curbing "bungled up," defendant objected on the ground that there had been no proper identification of the car.

The witness Dr. Inge testified for plaintiff that he had treated plaintiff for injuries received in an automobile accident; that she had a lacerated scalp, that there were multiple bruises about her body, and that she was badly shocked, upset, and hysterical.

Plaintiff's witness Dr. Wright testified that he was an eye, nose, and throat specialist, and it was admitted he was an expert. Whereupon he was asked the question quoted in the opinion, to which defendant objected on the ground that the question was not hypothesized on the facts in the case.

By his deposition taken for the plaintiff the witness McDermott testified that he had been working in the same office with plaintiff for four years. Over defendant's objection this witness was interrogated, and made answer, as follows:

Q. "What was her nature or disposition as to being quiet or nervous or complaining prior to the accident? A. She never complained and she never showed any signs of nervousness at all.

Q. "Did you notice any change in her? A. Yes sir, she was always nervous."

Defendant objected to the following excerpt from the oral charge of the court:

"A malicious act in law is not necessarily an act that is done as the result of hatred or ill will; but an act can be maliciously done so far as the definition of malice is concerned, if the act done is done having full consciousness of the surrounding circumstances and that the result of the act done will probably result in the injury to another who is rightfully going about his business--and if a person then intentionally and willfully injures another by disturbing that other in the enjoyment of his legal and lawful rights, and is conscious of the fact that his action will so result in injury, and yet persists in what he is doing and injury follows as a proximate result thereof, that rises as a matter of law to the same thing as if it had been done intentionally and maliciously with the intent to injure."

Inge & Bates, of Mobile, for appellant.

Smiths, Young, Leigh & Johnston, of Mobile, for appellee.

THOMAS J.

The suit is for damages for personal injury inflicted in an automobile accident occurring at the intersection of public streets in the city of Mobile. The plaintiff was a guest of Miss Mott in her automobile, which was going east on Conti street, while the car of defendant was being driven by her, and was proceeding south on Bayou street when the collision occurred which caused the injury of which complaint is made.

The appeal is taken from the judgment against defendant and from the order refusing the motion for a new trial. The motion for a new trial was rested upon the grounds, among others, that the damages awarded were excessive and that the argument of counsel, to which objection was made, was improper.

The trial was upon count 1, for simple negligence, count A, charging willful injury, and count B, alleging that defendant willfully and maliciously injured plaintiff. Defendant's traverse thereof was the general issue. There are many assignments of error. For convenience, they will be considered in the order of respective arguments of counsel relating thereto.

Negligence may be charged in general terms. However, a plaintiff must allege the relationship between the parties litigant, and show by the facts averred a duty owing by the defendant to the plaintiff; and a breach of that duty may be averred by way of conclusion. B.R., L. & P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; A.F. & I. Co. v. Bush, 204 Ala. 658, 86 So. 541; L. & N.R.R. Co. v. Johnson, 162 Ala. 665, 50 So. 300; B.R., L. & P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304; L. & N.R.R. Co. v. Kelly, 198 Ala. 648, 73 So. 953. When the averments of count 1 are considered as a whole, there was no error in overruling demurrer thereto. It is sufficient to show the relation of the parties, and duty, in the premises, of defendant to plaintiff. To be more specific, the averment that the collision occurred at the intersection of Conti and Bayou streets, when considered with the other allegations of the count, is sufficient to show that the accident happened at the intersection of those streets or that part of the street proper which was common to the two public highways named. It is hardly necessary to observe that the word "street" is defined as a public highway in a city or town--a way with the right of use by the public for the purpose of travel. A. & W.P.R. Co. v. A.B. & R. Co., 125 Ga. 529, 54 S.E. 736; M. & O.R. Co. v. State, 51 Miss. 137; State v. Beeman, 35 Me. 242: Pittsburg, etc., Co. v. Hays, 17 Ind.App. 261, 44 N.E. 375, 45 N.E. 675, 46 N.E. 597; In re Woolsey, 95 N.Y. 135; In re Penny Pot Landing, 16 Pa. 79; Debolt v. Carter, 31 Ind. 355. The word "at," as used in count one of the complaint, meant "in." Halstead v. Woods, 48 Ind.App. 127, 95 N.E. 429; Jenkins v. State, 4 Ga.App. 859, 62 S.E. 574.

The evidence showed plaintiff's permanent injury (the loss of her senses of smell and of taste), and that her nervous system is injuriously affected, physical injuries for which she was confined in a hospital about 12 days, that she lost time (about one month) from her work, and the reasonable expenses for hospital, nurses, and surgeons of about $300 incurred by her.

It will not be necessary to review the ruling on refusal to grant a new trial.

As to the argument of plaintiff's counsel, to which exception was reserved, and on which the motion for new trial was based, the bill of exceptions recites:

"During the course of the argument to the jury for the plaintiff, *** one of the attorneys for the plaintiff said to the jury: 'I saw recently in the public press where a young man, who had injured another, had all of his estate transferred from him to the person who was injured.'

"The defendant immediately and in the presence of the jury, objected to the above statement to the jury, whereupon Mr. Smith said: 'Counsel was interrupted by the objection before completing his statement. I withdraw the statement.'

"The court then said: 'The gentleman withdraws the contention, and it is not before the jury, and that ends it.'

"Counsel for defendant thereupon contended that that did not end it; that it had been made to the jury and was before them."

Unless this argument is so grossly improper and highly prejudicial that retraction could not destroy its sinister influence, there must be objection and exception to the action or ruling of the court. Anderson v. State, 209 Ala. 43, 95 So. 171. There was no exception taken to the ruling. The remark of counsel in question did not come within the rule of Watts v. Espy (Ala.Sup.) 101 So. 106. Davis, Dir. Gen., v. Quattlebaum, 210 Ala. 242, 97 So. 701; Moulton v. State, 199 Ala. 411, 74 So. 454; Anderson v. State, 209 Ala. 43, 95 So. 171; B.R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A. 543; Metropolitan Life Ins. Co. v. Carter (Ala.Sup.) 102 So. 130. We do not pass upon the foregoing argument, since it is only presented by the ruling on the motion for a new trial, and the case being reversed on other grounds, under our rule, we do not come to a consideration of the ruling of the court on refusing to grant the motion for a new trial.

We do not think there was reversible error in the further argument of counsel, to which exception was duly reserved, as follows:

"The evidence shows that Mr. Wilson is an insurance agent. When he was cross-examined he became angry because his testimony was not accepted without question. His testimony was in conflict with that of every eyewitness. Whether it was the insurance end of it that made him angry or just his imagination, I do not know."

The exception was limited to the last...