Fortson v. Hester

• Decision Date: 17 March 1949
• Docket Number: 7 Div. 994.
• Parties: FORTSON et al. v. HESTER.
• Court: Alabama Supreme Court

39 So.2d 649

252 Ala. 143

FORTSON et al. v. HESTER.

7 Div. 994.

Supreme Court of Alabama

March 17, 1949

Rehearing Denied April 14, 1949.

Lusk Swann & Burns, of Gadsden, and Chas A. Wolfes and Scott & Dawson, all of Fort Payne, for appellants.

W. Jay Tindle, of Fort Payne, for appellee.

STAKELY Justice.

This is an action for damages for personal injuries brought by Aubrey Lee Hester, by next friend, against Elwyn Fortson individually and also against Paul Roden and Jerry Roden individually and as partners, doing business as DeKalb Creamery. The complaint contains one count which charges willful or wanton misconduct. The trial of the case resulted in a verdict and judgment for the plaintiff. This appeal is from that judgment.

Assignments 4 to 9 inclusive. These assignments deal with the action of the court in refusing to give the affirmative charge in favor of the defendants. There was no error in this regard. Tendencies of the evidence showed the following. On January 31, 1948 Aubrey Lee Hester, a boy 13 years of age, was riding his bicycle in a southerly direction along Godfrey Avenue, a paved public street in the residential section of the City of Fort Payne in DeKalb County, Alabama. He was engaged in delivering newspapers to various customers along the route he served. It was a cold, rainy, foggy morning and he was riding his bicycle on the righthand side of the street. The time was about 6 A.M. when 'good daylight had not broken' on account of cloudy conditions and the light on his bicycle was burning. A milk truck driven by the defendant Elwyn Fortson for Paul Roden and Jerry Roden, doing business under the firm name of DeKalb Creamery, was travelling in a northerly direction on its left side of the street and while on such left side of the street ran into the boy on his bicycle. The boy was dragged about 18 to 20 feet and then fell from under the left front fender, leaving him off the pavement on the truck's lefthand side. The movement of the truck was stopped when it hit a stump and a tree on its left side of the street. The truck travelled 43 steps from where it hit the boy until it came to a stop. The driver of the truck testified that he did not see the plaintiff, although he had his lights on and that it was foggy and raining. He did not apply his brakes until after he struck the boy. The driver was delivering milk. He did not, however, cut across the street to make a milk delivery. The next place of delivery was 'about a good city block.' The boy was severely and seriously injured.

Under the foregoing tendencies of the evidence the case was for the jury on the issue of wanton misconduct. The truck was on a public street in a residential district where people had a right to be and would likely be at 6 o'clock in the morning. The visibility was poor, but despite these conditions the truck was driven on the wrong side of the street and at a speed that caused the truck to travel about 43 steps from the point of impact until it was stopped by a stump off the street, up a slight bank on the lefthand side of the truck. Assuming that the driver of the truck did not intend a collision, the jury had the right to infer that he knowingly and wrongfully brought on a condition of danger taking a chance that there was no one on the public street because he could not be sure of the absence of others because of poor visibility. Positive intent to bring about the collision was not necessary to constitute wantonness. Daniel v. Motes, 228 Ala. 454, 153 So. 727. And the fact that the driver did not see persons on the highway does not relieve his action of wantonness when he had knowledge that persons, though not seen, were likely to be in a position of danger and yet in conscious disregard of these known conditions of danger, he brought on the disaster by the manner of his driving. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Newton v. Altman, 227 Ala. 465, 150 So. 698; Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So.2d 865; Barrett v. McFerren, 231 Ala. 382, 165 So. 226; J. C. Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461.

Assignments 3 and 17. These assignments relate to the following question which was asked by plaintiff's counsel of Max Robertson, the Chief of Police, 'I will ask you to state to the jury whether or not you know of your own knowledge that Elwyn Fortson was tried and convicted for reckless driving?' Objection was made to the question and the court sustained the objection and charged the jury in substance that whether the driver was charged or tried in another court had nothing to do with the case before them and must not enter into their consideration of the case. The defendants made a motion for a mistrial which was overruled. There was no answer to the question asked the witness and nowhere in the record was there any effort to bring this matter back into the case. We feel satisfied that error, if any, was cured by the action of the court.

Assignments 1, 2, 14 and 15. The appellants contend that the court erred in qualifying the jury as to whether any member of the panel was an officer, director, employee or stockholder of or in the Maryland Casualty Company. Prior to the qualification of the jury there was a conference between the judge and attorneys on both sides of the case in the judge's chambers and outside the presence of the jury. At this conference counsel for appellant made known to the court that the appellants had a liability insurance policy in the Maryland Casualty Company to the extent only of $5,000 which would not indemnify the appellants in pending suits in the event damages were recovered in excess of this amount. The attorneys objected to the court's qualifying the jury panel unless the plaintiff first made some showing that he had reasonable ground to believe and did believe that some members of the jury panel were either officers, employees or stockholders in the Maryland Casualty Company. The court overruled the objection and propounded this qualifying question to the jury panel. There was no error in this ruling of the court. In a recent decision of this court in the case of Vredenburgh Saw Mill Co. v. Black, Ala.Sup., 37 So.2d 212, 216, this court quoted from Gammill v. Culverhouse, 217 Ala. 65, 114 So. 800, the following words of Mr. Justice Somerville: "Since our decisions in the case of Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561(30), 581, 62 So. 199, the rule has been firmly settled in this state that the plaintiff is entitled, upon his seasonable and proper motion, to have the jurors from whom the trial jury is to be selected qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be rendered against the defendant. * * *"

There is nothing in the present record to show that the conduct of counsel in presenting its motion for qualification of the jury was attended with circumstances calculated to prejudice the rights of the defendant. International Harvester Co. et al. v. Williams, 222 Ala. 589, 133 So. 270; Cooper v. Auman, 219 Ala. 336, 122 So. 351.

Assignment 16. This assignment is based upon the refusal of the court on motion to set aside the verdict on the ground that it was a quotient verdict. It is a settled rule in this state that when figures are shown which were used by the jury in its deliberations and from these figures a fair inference may be drawn that the verdict was a quotient verdict, the court will so hold and that the verdict was the result of a previous agreement, unless the contrary is shown. Mobile & O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199. It is also settled that the evidence of jurors is admissible to sustain their verdict but jurors cannot testify to facts which tend to impeach their verdict. Mobile & O. R. Co....