Freeman v. Hall, 6 Div. 617

• Court: Supreme Court of Alabama
• Writing for the Court: SIMPSON; LIVINGSTON; PER CURIAM; LIVINGSTON; COLEMAN
• Citation: 286 Ala. 161,238 So.2d 330
• Decision Date: 26 February 1970
• Docket Number: 6 Div. 617
• Parties: Mrs. Irene H. FREEMAN and Ideal Mutual Insurance Co. v. H. J. HALL.

Page 330

238 So.2d 330 286 Ala. 161 Mrs. Irene H. FREEMAN and Ideal Mutual Insurance Co.
v.
H. J. HALL. 6 Div. 617. Supreme Court of Alabama. Feb. 26, 1970.
After Remandment Aug. 6, 1970.

[286 Ala. 162]

Page 331

George S. Brown, Birmingham, for appellants.

[286 Ala. 163] Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellee.

SIMPSON, Justice.

This case was brought by the widow and dependent children of Robert S. Freeman, deceased, under the provisions of Title 26, § 312, Code of Alabama, seeking damages for the wrongful death of Robert S. Freeman. Ideal Mutual Insurance Company, the Workmen's Compensation carrier of the deceased, intervened in the case.

Page 332

Essentially the facts out of which this case arose are as follows:

The decedent, at the time of the accident which resulted in his death, was a driver of a Sealtest Milk truck. He was en route to the milk plant. The accident occurred at the intersection of Third Avenue and Seventh Street, in the City of Birmingham. The bumper of the truck owned by appellee Hall struck the bumper of the milk truck, and the milk truck overturned, crushing the decedent.

The evidence is conflicting as to whether or not the milk truck which the decedent was driving observed the stop sign at the intersection or whether or not it pulled in front of the truck owned by Mr. Hall without having first stopped.

The case was submitted to a jury which returned a verdict in favor of the defendant. This appeal followed.

The appellants' brief sets out 91 pages of testimony in the narrative and they make 51 assignments of error. However, they argue only three assignments of error, none of which goes to the sufficiency of the evidence. It is first contended that the trial court erred in overruling an objection to what the appellants contend was improper argument by Mr. Hall's attorney. The closing arguments of counsel are not included in the transcript. The appellants argue that the trial court erred in overruling their objection to a statement made by the appellee's attorney wherein he said that '* * * if it was just 30 percent of his fault (Mr. Hall's fault), then he (plaintiff) would not be entitled to recover.'

It is impossible for us to determine in what context this statement was made. We do not have closing arguments before us. It is contended by the appellants apparently that this was improper argument in that it failed to apprise the jury on the law of subsequent negligence. Assuming without conceding that the argument referred to was improper for this reason, there was no error to reverse in overruling the objection to this portion of the argument inasmuch as the record clearly shows that the trial court fully and completely charged the jury on every issue in the case, including the doctrine of last clear chance or subsequent negligence. We do not believe that the statement made by the appellee's attorney in closing argument was so highly prejudicial, if prejudicial at all, as to require reversal on this ground. As so often noted, control of arguments of counsel rests largely in the discretion of the trial court before whom the [286 Ala. 164] arguments were made. This court does not interfere with that discretion except in cases of clear abuse. We surely will not assume abuse of that discretion in a case where closing argument of counsel is not in the record. Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So.2d 288; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So.2d 331; Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426; Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So.2d 549; Occidental Life Insurance Co. of California v. Nichols, 266 Ala. 521, 97 So.2d 879; St. Clair County v. Martin, 273 Ala. 302, 139 So.2d 617; Beavers v. Boykin, 273 Ala. 413, 142 So.2d 10; Campbell v. Davis, 274 Ala. 555, 150 So.2d 187.

The next argument made by the appellant is to the effect that the trial court erred in refusing to allow the appellant to put into evidence a drawing made by a draftsman of the intersection which was the scene of the accident. The drawing was admittedly made more than three years after the accident occurred. The scene depicted by the drawing was inconsistent with the testimony of witnesses in the case. The drawing positioned a witness' car at a point where the witness testified it was not. In addition, the evidence indicated that there were a telephone booth, telephone pole, and buildings which were not depicted in the drawing. The trial court, in sustaining objections to the introduction of the drawing, noted, 'This is a one-sided drawing in that the dimensions

Page 333

are on one side and it is not shown that drawings there are like the conditions existing at the time of the accident'. For this reason alone the trial court was justified in excluding this evidence. In addition, there were a great many photographs of the intersection introduced which were made at the time of the accident. Even if this drawing had correctly depicted the scene at the time of the accident, it would have merely been cumulative and we cannot say that the trial court abused his discretion in disallowing it. As indicated in Crocker v. Lee, 261 Ala. 439, 74 So.2d 429, there is a distinction between the use of a drawing or diagram for purposes of illustration and the admission of such drawings as evidence. When such a drawing is introduced as evidence, it within itself tends to establish a particular fact. When used for illustration the testimony of the witnesses is evidence and the map or diagram is merely an aid to understanding that evidence. Here the plaintiff was allowed to use blackboard illustrations, drawn by the police officer who investigated the accident. We cannot say that he was prejudiced in not being allowed to introduce into evidence a drawing made more than three years after the accident, by a person who was unfamiliar with the conditions at the time of the accident, and which drawing failed to include some of the structures which witnesses testified existed at the scene.

The only additional contention made by appellant is that the trial court erred in refusing to grant a new trial on the ground that certain jurors failed to indicate in response to questions propounded by the attorneys for the parties whether any member of the venire had been plaintiffs or defendants in a lawsuit. On motion for new trial judgment certificates were introduced which showed that persons bearing the name of jurors who served had been defendants in lawsuits. One additional juror, Mrs. Garner, testified on hearing in the...