Grandquest v. Williams

Decision Date16 November 1961
Docket Number1 Div. 915
Citation135 So.2d 391,273 Ala. 140
PartiesB. O. GRANDQUEST et al. v. Blanchard WILLIAMS.
CourtAlabama Supreme Court

Lyons, Pipes & Cook, Mobile, for appellants.

Cunningham & Bounds, Mobile, for appellee.

STAKELY, Justice.

Blanchard Williams (appellee) instituted this action against B. O. Grandquest individually and doing business as Gulf City Construction Co. and Carl V. Reed (appellants) claiming damages for injuries suffered by the plaintiff arising out of a motor vehicle collision on U. S. Highway 31 approximately 5 miles south of Bay Minette, Alabama, on May 5, 1959. The plaintiff's complaint charged the defendants with simple negligence.

The defendants filed pleas of the general issue and contributory negligence. The result of the trial before a jury was a verdict and judgment in the sum of $15,000. Motion for a new trial was overruled. This appeal followed.

The accident occurred in the early morning on U. S. Highway No. 31 about 5 miles south of Bay Minette, Alabama, on May 5, 1959. The weather was clear. The highway was fairly level and there was a roadside park on the east side of the highway and there was a wide shoulder on the west side.

The plaintiff's automobile was headed south and the truck of Gulf City Construction Co., driven by Carl W. Reed, was headed north when the collision occurred. Damage was done to the left front end of both vehicles. We shall consider the assignments of error in the order in which they have been argued in brief except that we shall consider assignment of error No. 50 first.

Assignment of Error No. 50

On June 30, 1960 the court reporter filed the completed transcript of evidence in this cause with the clerk of the circuit court. On July 8, 1960 the defendants filed objections to the transcript of the evidence and a motion that the alleged errors therein be corrected. On August 8, 1960 the court took the motion under consideration upon the written stipulation of the parties that the evidence in support of and in denial of the motion be by affidavit. The affidavits were accordingly filed by the parties. The court denied the defendants' motion to correct the transcript of evidence and this ruling is assigned as error.

The procedural matters specified in Title 7, Section 827(la), 1955 Cumulative Pocket Part have been complied with. It will be noticed that in this atatute the ruling of the court upon such a hearing, 'shall be reviewable, with error duly assigned by the dissatisfied party upon the appeal of the cause, and the evidence upon such hearing shall be duly certified by the court reporter.' According to the appellants the first irregularity concerns a statement made by the prospective juror Bobert C. Whiting during the qualification of the jury. The transcript of evidence reads, 'I am an insurance agent and have written through it.' We think it reasonable to consider that the record is correct in that Whiting stated he had written policies through the U. S. Fidelity & Guaranty Co. because his statement is an immediate response to the following question of the trial court. 'Have you any connection with this insurance company, U. S. Fidelity & Guaranty Co.? Have you any connection with it?'

The second alleged irregularity concerns a statement made by the plaintiff on direct examination. The transcript reads, 'It was a total loss.' According to the appellants the transcript should read, 'It was a total loss. The insurance company paid for it.' The court reporter has certified that '* * * the testimony and proceedings were correctly taken down by me in shorthand and correctly transcribed by me.' Upon consideration of the matter in the light of the affidavits and the certificate of the court reporter we are not satisfied that the court was in error in denying the motion and accordingly we find no error in this ruling.

Assignment of Error No. 2

It is urged that the trial court erred in overruling defendants' motion for a new trial. One of the grounds of the motion is that the verdict of the jury and the judgment thereon were contrary to the great weight and preponderance of the evidence. Authorities such as King v. Brindley, 255 Ala. 425, 51 So.2d 870, are cited to support the proposition that where the testimony of a witness is incredible, incoherent or physically impossible and unbelievable or contrary to physical facts in common observation and experience, such evidence is to be disregarded as being without evidentiary value. The plaintiff testified that, 'He was over on my side of the road. First I thought he was fixing to pull over in the parkway. There was a little place where he could pull in. I let up on the accelerator and applied the brakes casual like and about that time he turned and started to back across the road * * *.' The appellants point out that the park was not located on the plaintiff's side of the road. However, the evidence shows that there was parking space on both sides of the road.

Furthermore, according to the appellants the plaintiff testified that the accident occurred on the crest of a hill but later testified that the highway at the scene of the accident was straight, wide and level. The testimony of the plaintiff shows that the hill in question was a slope or long grade and that the highway was fairly level and straight. This court has held in the case of Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642, that the jury can properly consider the conflict between the testimony of any witness and the 'physical facts' in determining what weight should be given to the testimony. The jury should take the truth wherever found in the evidence. They may accept or reject different parts of the evidence in working out a verdict supported by any reasonable theory of the evidence. Donaldson v. Fuqua, 232 Ala. 604, 169 So. 223.

The appellants also argue that the plaintiff had ample time to bring his vehicle to a stop after he observed the defendant on the wrong side of the road, if he were traveling at a reasonable speed. Emphasis is placed on the testimony of the patrolman who found only one skid mark which, according to the appellants, indicates that the vehicle was moving at an excessive speed or that the brakes were defective. However, according to the plaintiff there was no apparent need to come to an immediate stop because he thought the defendant was pulling off the road. Furthermore, the patrolman testified that he was only concerned with finding one skid mark and did not testify that there was only one. This court has held many times that verdicts are presumed to be correct and no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785. Furthermore, verdicts are presumed correct and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. Mintz v. Millican, 266 Ala. 479, 97 So.2d 769. Furthermore, on appeal from a judgment for the plaintiff this court must review the tendencies of the evidence most favorable to the plaintiff allowing such inferences as the jury was free to draw. Jeffrey Mfg. Co. v. Hannah, 268 Ala. 262, 105 So.2d 672.

The appellants also insist that the motion for a new trial should have been granted because the plaintiff abused his privilege of qualifying the jury by direct references to the defendants' insurance coverage. We think it well to go to the record in this respect. Prior to the qualification of the jury defendants' counsel placed a slip of paper on the clerk's desk which named the defendants' insurance carrier. We quote from the record:

'Court: I believe that it is agreed that I qualify the jurors as to their connection with this company.

'Counsel for Plaintiff: Judge, I don't know anything about any agreement. What is it you refer to--an insurance company?

'Court: Yes, this is a note someone handed up here to me.

'Counsel for Defendants: That is the name of the defendants' insurance company, Your Honor.' This note was examined by counsel for the plaintiff.

'Counsel for Plaintiff: This is all right, Your Honor.

'Court: Is it agreed that I qualify the jury as to that insurance company?

'Counsel for Plaintiff: Yes, sir.

'Court: Is there any juror connected with the U. S. F. & G. Company United States Fidelity and Guaranty Company--Insurance Company it is, own any stock therein, connected therewith, employed by them or have any business with them, or is there any reason why you could not render a true verdict in this case, unbiased?

'Juror: * * * We have the U. S. F. & G. in our agency.

'Counsel for Plaintiff: We challenge the juror for cause.

'Court: All right. You may be excused. * * *

'Court: They all seem qualified.

'Counsel for Plaintiff: Your Honor, I don't think you asked if any of them were agents or if any of their immediate families were employed by that insurance company.

'Court: Well, if I dindn't, I'll ask it now. * * *

'Juror: My name is Robert C. Whiting. I am an insurance agent and have written through it.

'Counsel for Plaintiff: We challenge the juror for cause.'

It will be noted that the only statement made to the effect that this insurance company was the insurance company of the defendants was by the defendants' own counsel. After the statement of defendants' counsel there was less need to avoid any reference to the insurance company. Accordingly we consider that the references to the insurance company were for the purpose of qualifying the jury and not for the purpose of prejudicing the jury.

Another ground of the motion for a new trial which is the basis of Assignment No. 11 as well as one of the grounds of the motion for a new trial is that the trial court was in error in refusing to grant the defendants' challenge for cause when one prospective juror stated, 'The plaintiff and I are personally acquainted and work for the same...

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53 cases
  • Clark v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 28, 1992
    ...Id. A reversal is not appropriate absent abuse of discretion. Alabama Power Co. v. Henderson, 342 So.2d at 327; Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817 (1933); Brown v. Woolverton, 219 Ala. 112, 115, 121 S......
  • White v. Lock
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    • June 26, 1985
    ...is not a prima facie disqualification. See State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1947). See also Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961). The appellee's employer had no interest, pecuniary or otherwise, in the action, Watkins v. B & O Railroad, 130 W.Va. 268,......
  • Bush v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 1, 1995
    ...A reversal is not appropriate absent abuse of this discretion. Alabama Power Co. v. Henderson, 342 So.2d at 327; Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817 (1933); Brown v. Woolverton, 219 Ala. 112, 115, 121 ......
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    • U.S. District Court — Middle District of Alabama
    • September 8, 2014
    ...did not believe the inaccuracy was misleading."Calhoun v. State, 932 So.2d 923, 951 (Ala.Crim.App. 2005), quoting Grandquest v. Williams, 135 So.2d 391, 397 (Ala. 1961).Here, Investigator Ward admitted that the drawing was not to scale. Any inaccuracies in the diagram were to be brought out......
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1 books & journal articles
  • The Blindfold for Lady Justice Does Not Go on Until After Jury Selection
    • United States
    • Alabama State Bar Alabama Lawyer No. 72-3, May 2011
    • Invalid date
    ...is to avoid possible prejudice Personal acquaintance with a party is not an absolute challenge for cause. Grandquest v. Williams, 273 Ala. 140, 135 So. 2d 391 (1962). Nor is acquaintance with counsel. Roberson v. U.S., 249 F.2d 737 (5th Cir. 1958). The question is probable prejudice. The Un......

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