Gilbert v. Vann

• Decision Date: 12 June 1969
• Docket Number: 3 Div. 343,3 Div. 342
• Citation: 224 So.2d 635,284 Ala. 279
• Parties: James E. GILBERT v. Maggie Fowler VANN. James E. GILBERT v. David K. VANN, a Minor by his Uncle and Next Friend, T. M. Fowler. ,
• Court: Alabama Supreme Court

Page 635

224 So.2d 635

284 Ala. 279

James E. GILBERT v. Maggie Fowler VANN.

James E. GILBERT v. David K. VANN, a Minor by his Uncle and Next Friend, T. M. Fowler.

3 Div. 342, 3 Div. 343.

Supreme Court of Alabama.

June 12, 1969.

Barry C. Leavell of Alton, Curlee & Leavell, Montgomery, for appellant.

John B. Scott, Jr. of Capell, Howard, Knabe & Cobbs, and Richard M. Jordan, Montgomery, for appellees.

LIVINGSTON, Chief Justice.

This appeal is from two judgments rendered by the Circuit Court of Montgomery County, Alabama, in two of three companion cases plus a plea in recoupment consolidated for trial in the lower court. The trial court was faced with the following situation: James E. Gilbert, appellant here, initially filed suit against Mrs. Maggie Vann, one of two appellees here, for damages to his automobile and expenses incurred by him as a result of certain injuries sustained by his wife, who was a passenger in his car at the time of the accident. Mrs. Gilbert also filed suit against Mrs. Vann to recover for the personal injuries which she sustained. Appellee, Mrs. Vann, filed a plea in recoupment against appellant, Mr. Gilbert, to recover for damages to her car and for certain medical expenses incurred by her for the treatment of injuries sustained by her minor son, David Vann, who was a passenger in her vehicle at the time of the accident. Subsequently a separate suit was filed on behalf of David Vann by next friend to recover on his (David's) claim for personal injuries sustained in the accident. As previously mentioned, all of the cases were consolidated by consent for trial.

At the conclusion of trial, verdicts were returned by the jury:

(1) In the case of James E. Gilbert v. Maggie Fowler Vann, verdict was for the defendant, appellee, Maggie Fowler Vann.

(2) In the case of David K. Vann, a Minor by his Uncle and Next Friend, T. M. Fowler, verdict was for the plaintiff, appellee, David K. Vann.

Judgments were rendered accordingly.

Appellant, James E. Gilbert, filed a motion for new trial, which was denied by the trial court. Thereafter, appellant filed a timely appeal to this Court.

The facts, in substance, are that an automobile collision took place in the north parking lot of the Garrett Coliseum on the 12th day of December, 1965. To say the least, there was conflicting testimony as to how the accident occurred. Suffice it to say that an accident did occur when two automobiles, being driven respectively by Mr. Gilbert, appellant, and Mrs. Vann, appellee, collided.

As indicated, the trial court was faced with most conflicting testimony with regard to how the accident occurred, primarily because the principal witnesses were the immediate parties involved in the suit. Each party, in turn, gave his own version of how the accident occurred and an opinion as to which party was at fault. Some light, however, was apparently shed on the controversy by the testimony of Claude Lansdom and police officer, K. W. Jones.

In brief, Mr. Lansdom's testimony tended to corroborate appellee's (Mrs. Vann) version of how the accident occurred. Officer Jones' testimony was, in substance, that the accident occurred out in the driveway, which also tended to support Mrs. Vann's version of how the accident occurred. In view of the conflict in the testimony, the jury must have placed much emphasis on the testimony of these two witnesses.

There are 21 assignments of error in this cause. Twelve of the assignments are based on the refusal of the trial court to give certain written charges requested by appellant. The next six assignments assert error on the part of the trial court in giving certain of the written charges requested by appellee. Of the remaining three assignments, one assigns error in the denial of appellant's motion for new trial and the remaining two assign error to the lower court for, respectively, accepting inconsistent verdicts from the jury and for giving an improper oral charge to the jury.

As stated, appellant assigned 21 alleged errors, however, only four of the assignments are argued. Supreme Court Rule 9, Supreme Court Rules of Practice, states, in substance, that assignments of error not substantially argued in brief will be deemed waived. The cases so holding are too numerous to require citation. Accordingly, since only four of the 21 assignments are substantially argued in brief, only those four will be considered by this Court.

The four assignments substantially argued in brief by appellant are numbered 1, 2, 8 and 9.

Assignment of error No. 1 asserts error on the part of the trial court in refusing to give appellant's requested written Charge No. 1, as follows:

'Charge No. 1.

'The Court charges the jury that if you are reasonably satisfied from the evidence in this case that at the time of the accident Reverend Gilbert was driving his automobile in a careful and prudent manner and in the manner in which a reasonably prudent man would have driven his automobile under the same or similar circumstances, then your verdict should be for the Plaintiff.

'Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516.

'Refused, Carter, Judge.'

Assignment of error No. 2 asserts error on the part of the trial court in refusing to give appellant's requested written Charge No. 2 as follows:

'2. The Court charges the jury that if you are reasonably satisfied from the evidence that Reverend Gilbert operated his automobile in a reasonably careful and prudent manner at the time of the accident then you cannot find for the Defendant.

'Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516.

'Refused, Carter, Judge'

Assignments of error Nos. 1 and 2 are without merit and are effectively disposed of by our holding in the recent case of State v. Ingalls, 277 Ala. 562, 567, 173 So.2d 104, where we said:

'We are of opinion that the court was not in error in refusing Charge 1 for two additional reasons.

'First, the charge was abstract, being based on facts not appearing in evidence, and it is not error to refuse such instructions. Troy v. Rogers, 113 Ala. 131, 145, 20 So. 999; Pappas v. Alabama Power Company, 270 Ala. 472, 479, 119 So.2d 899.

'Second, the instruction bears a citation to two decisions of this court. The statute, § 273, Title 7, requires that 'Charges * * * must be given * * * in the terms in which they are written * * *.' The court would be bound to read to the jury, not only the proposition of law stated in the charge, but...