Gardner v. Dorsey

• Decision Date: 07 May 1976
• Citation: 331 So.2d 634
• Parties: David H. GARDNER v. Fred Marvin DORSEY. SC 1436.
• Court: Alabama Supreme Court

Page 634

331 So.2d 634

David H. GARDNER v. Fred Marvin DORSEY.

SC 1436.

Supreme Court of Alabama.

May 7, 1976.

Timberlake & Werdehoff, Huntsville, for appellant.

Bell, Richardson, Cleary & Tucker and James H. Porter, Huntsville, for appellee.

JONES, Justice.

This is an automobile negligence case. The plaintiff, David H. Gardner, was a passenger in a car driven by Paul Miller which collided with a car driven by Fred Marvin Dorsey. Gardner sued both Dorsey and Miller for wantonness and simple negligence. The jury found in favor of defendant Dorsey against Gardner on both the wantonness and simple negligence counts. The jury found in favor of defendant Miller against Gardner on the wantonness count but in favor of Gardner against Miller on the simple negligence count and awarded him $500. The trial Judge granted Gardner an additur against Miller and denied Gardner's motion for a judgment n.o.v. against Dorsey. Gardner at first appealed both judgments but later dropped the appeal against Miller. This is the appeal against Dorsey. We reverse and remand for a new trial.

Gardner argues four issues. First, the trial Judge should not have granted Dorsey's requested instructions to the effect that the jury could not find for the plaintiff against Dorsey under the negligence count of the complaint if they were reasonably satisfied that the injury to the plaintiff was caused in part by the negligence of Miller. Second, the Court erroneously instructed the jury that any negligence on the part of Miller was imputable to Gardner so as to bar Gardner from recovery against Dorsey on the ground of contributory negligence. Third, a rehabilitation counselor who was assisting Gardner establish a rehabilitation program should have been allowed to testify as to his opinion on Gardner's diminished earning capacity. Finally, the verdict was against the preponderance of the evidence.

Our reversal of the trial Court's judgment is based upon Gardner's first and second issues. These issues relate to the trial Judge's oral instruction to the jury and Dorsey's Requested Charge Number Three, both of which stated that any negligence of the driver, Miller, was imputable to his passenger, Gardner, so as to bar Gardner's recovery from Dorsey on the ground of contributory negligence. Since our reversal is based on these issues alone, we find it unnecessary to discuss the other issues presented in this appeal.

Requested Charge Number 3 reads as follows:

'The Court charges the jury that you cannot find for the plaintiff, David H. Gardner, against the defendant, Fred Marvin Dorsey, under Count Two (the negligence count) of the complaint if you are reasonably satisfied from the evidence that the injury of which plaintiff, David H. Gardner, complains was in part caused by the negligence of the driver of the vehicle in which plaintiff was riding, Paul St. Clair Miller.'

This instruction is a misstatement of substantive law. The rule for imputing a driver's negligence to his passenger is well established in Alabama. A correct statement of the law is found in Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951):

'. . . in order to create the imputation of negligence of the driver to the passenger, the passenger must have assumed control and direction of the vehicle or must have some right to a voice in the control, management or direction of the vehicle.'

Since the instruction did not include this explanation, but only stated that any negligence of Miller was imputable to Gardner, the instruction misstated the law.

Gardner's objection to the Requested Charge was:

'I want to except to The Court giving Requested Charge Number 3 for the defendant Fred Marvin Dorsey, Civil Action Number 73--658, in that it is misleading. It assume an agency relationship or joint enterprise. There has been no testimony as to agency relationship or joint enterprise of the Defendant Paul St. Clair Miller and the Plaintiff, David H. Gardner.'

This objection is specific enough to preserve the trial Judge's error on the requested charge; therefore, the error requires a reversal of this case.

We also hold that the oral charge of which Gardner complains requires a reversal of this case. The oral instruction of which Gardner complains occurred after the closing of the case when the jury interrupted its deliberation to ask the following questions:

'What is the definition of guest and passenger? How does each, guest and passenger, relate to wanton and simple negligence?'

In response thereto the trial Judge instructed the jury:

'. . . (I)f you determined that he (Gardner) was a guest and that Miller was contributorily negligence, then you could not find against Dorsey on the simple negligence count . . . I will try to repeat it. If you find that the Plaintiff was a guest in Miller's car and if you find that Miller was guilty of simple negligence which contributed to the accident, then you could not find against Dorsey on thesimple negligence count, but you could on the wanton count, because contributory negligence is not a defense to a wanton act . . .'

Again, this instruction is a misstatement of substantive law. Johnson v. Battles, supra.

Dorsey concedes the instruction was erroneous, but he contends that Gardner did not properly preserve the error for review because his objection did not state grounds. Dorsey relies upon ARCP 51, which states in pertinent part:

'No pa...