Franklin v. Cannon

• Court: Supreme Court of Alabama
• Citation: 565 So.2d 119
• Parties: Belton FRANKLIN v. Lisa Charlene CANNON, et al. 88-1084.
• Decision Date: 25 May 1990

Page 119

565 So.2d 119

Belton FRANKLIN v. Lisa Charlene CANNON, et al.

88-1084.

Supreme Court of Alabama.

May 25, 1990.

E. L. Brobston, Bessemer, for appellant.

Tom E. Ellis, Birmingham, for appellee Lisa Charlene Cannon.

Burgin H. Kent of Bishop, Colvin & Johnson, Birmingham, for appellee Ronnie Woods.

ALMON, Justice.

This is an appeal from a judgment on jury verdicts for the defendants in a wrongful death action. The plaintiff argues that the trial court allowed one of the defendants to testify regarding an issue of ultimate fact, that the testimony invaded the province of the jury, and that allowing it was error; and that it erred in instructing the jury about disregarding the testimony of an impeached witness, in entering judgment on what the plaintiff says are inconsistent verdicts, and in denying a motion for new trial on the ground that the verdicts were unsupported by the evidence or showed that the jury failed to follow the court's instructions.

On December 17, 1987, a collision occurred between an automobile driven by Lisa Cannon and one driven by Ronnie Woods. Carolyn Franklin was a passenger in the Cannon automobile and died as a result of injuries she suffered in the collision. Both Cannon and Franklin were 17 years old. The collision occurred when Cannon, making a left turn, lost control of her car, which was caused to slide sideways along the lane of oncoming traffic. The passenger side of Cannon's car was toward the oncoming traffic, and Woods's vehicle struck Cannon's car.

Franklin's father brought an action against Cannon and Woods. Woods cross-claimed against Cannon, alleging damage to his automobile. Because Alabama's Guest Statute, Ala.Code 1975, § 32-1-2, precludes the liability of a driver for injuries to a guest passenger except when caused by the driver's willful or wanton conduct, Franklin's claim against Cannon was submitted to the jury only on the issue of wantonness.

Cannon's attorney asked her the following question: "Did you consciously do something or do any act that you felt would endanger the life of your best friend and you?" The court overruled Franklin's objection, and Cannon answered, "No, sir, I didn't." Franklin argues that that question invaded the province of the jury in its ultimate decision of whether the acts of Cannon amounted to wantonness.

Franklin first cites Oxford Iron Co. v. Spradley, 51 Ala. 171 (1871), as holding that a person whose motive or intention is at issue cannot testify as to his motive or intention. That principle was overruled in Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974). See Smith v. Granger, 388 So.2d 200 (Ala.1980); C. Gamble, McElroy's Alabama Evidence, § 102.07 (3d ed. 1977).

Franklin also cites Broughton v. Kilpatrick, 362 So.2d 865 (Ala.1978), and Holman v. Brady, 241 Ala. 487, 3 So.2d 30 (1941), as holding that, in circumstances similar to those presented here, a trial court erred in allowing the defendant driver to give testimony that invaded the province of the jury. Those cases are distinguishable, however, because the questions in those cases involved "material conclusions from detailed facts, which the jury itself should have been allowed to draw from the evidence." Holman, 241 Ala. at 491, 3 So.2d at 34; Broughton, 362 So.2d at 868. In both cases, the question regarded the causation of the accident--in essence, whether the defendant's vehicle would have struck the plaintiff's if the plaintiff had not driven into the defendant's path.

Such speculations as to causation are distinguishable from a direct question as to the defendant's intent or mental state. Far from holding that such a question cannot be asked if it relates to an ultimate issue, Starr v. Starr holds that such a question can be asked only if the testimony is material to the issues in the case. The trial court did not err in overruling Franklin's objection to the question at issue.

Franklin next argues that the court erred in giving the following instruction to the jury:

"The court charges you that a witness may be discredited or impeached by contradictory evidence by showing that the witness testified falsely concerning a material matter or by evidence that at some other time the witness has said or done something or failed to say or do something which is inconsistent with the witness's present testimony.

"If you believe that any witness has been so impeached, it is your exclusive province to give the testimony of that witness such credibility or weight, if any, you think may be deserved."

This charge is virtually the same as one approved in Local 204 of Textile Workers Union of America v. Richardson, 245 Ala. 37, 15 So.2d 578 (1943), and in a long line of cases cited therein, particularly Birmingham Ry. L. & P. Co. v. Glenn, 179 Ala. 263, 60 So. 111 (1912). The instruction in Local 204 regarded contradictory evidence given by the plaintiff, but cases such as Reynolds v. State, 196 Ala. 586, 72 So. 20 (1916), make it clear that the rule applies to all witnesses, not just litigants. The Court of Criminal Appeals has cited with approval the phrasing of the instruction in Local 204. Eslava v. State, 473 So.2d 1143 (Ala.Crim.App.1985). The words "if any" are not in the...