Grissom v. Dahart Ice Cream Co.

• Decision Date: 18 January 1949
• Docket Number: 6 Div. 711.
• Citation: 34 Ala.App. 282,40 So.2d 333
• Parties: GRISSOM v. DAHART ICE CREAM CO., Inc., et al.
• Court: Alabama Court of Appeals

40 So.2d 333

34 Ala.App. 282

GRISSOM v. DAHART ICE CREAM CO., Inc., et al.

6 Div. 711.

Alabama Court of Appeals

January 18, 1949

Rehearing Denied Feb. 8, 1949.

Gibson & Hewitt, of Birmingham, for appellant.

Jos. S Mead, of Birmingham, for appellee Dahart Ice Cream Co.

Francis H. Hare, of Birmingham, for appellee DeLuxe Cab Co.

The record shows the following on examination by defendant Dahart Ice Cream Company of defendant's witness Dr. Patton:

'Q. * * * Now, did you diagnose any post-traumatic neurosis?

'Mr Gibson: I object to that, not necessarily trained in psychology.

'The Court: Overrule.

'Mr. Gibson: We except.

'A. I didn't make any diagnosis.'

The foregoing ruling is made the basis of assignment 25.

The following charges were given at the request of defendants:

'DeLuxe. 16. The Court charges you that the defendant, DeLuxe Cab Company, Inc. is liable only for negligence; and if there be no negligence on the part of said defendant, it is not liable.'

'DeLuxe. 22. The Court charges you that if you are reasonably satisfied from the evidence that the plaintiff's skull was injured prior to the accident made the basis of her suit against the defendants, and that the prior injury to her skull was not aggravated or made worse as a result of this accident, then you can award plaintiff nothing for damages to her skull.'

'DeLuxe. 23. The Court charges you that if you are reasonably satisfied from the evidence that under the circumstances, the driver of the taxicab of the defendant, DeLuxe Cab Company, Inc. operated his vehicle in a careful and prudent manner, and that the accident was not the result of any negligence on his part, then you cannot find for the plaintiff as against the defendant, DeLuxe Cab Company, Inc.'

'DeLuxe. 24. The Court charges you that if you are reasonably satisfied from the evidence that the plaintiff's skull was injured prior to the accident made the basis of her suit against the defendants, and that the prior injury to her skull was not aggravated or made worse as a result of this accident, then you can award the plaintiff nothing for any pain or suffering arising from the injury to her skull.'

'DeLuxe. 28. The Court charges you, gentlemen of the jury that if you are reasonably satisfied from the evidence that the plaintiff, Carrie Lee Grissom, was not a fare-paying passenger of the defendant, DeLuxe Cab Company, Inc., then you can award her nothing as against that defendant, the DeLuxe Cab Company, Inc.'

'Dahart. 5. The Court charges the jury that it cannot award the plaintiff any damage for an injury received prior to June 13, 1947.'

CARR Judge.

The plaintiff below stated her cause of action under one count of her complaint in which the Dahart Ice Cream Company and the DeLuxe Cab Company were named as defendants.

She alleged that she was riding as a passenger for hire in the cab of the latter company, and while so journeying she sustained personal injuries incident to a collision between the car in which she was riding and an automobile operated by an agent of the Dahart Ice Cream Company.

In the court below she was awarded damages in the amount of $100.00 against the last named defendant. The jury rendered a verdict in favor of the DeLuxe Cab Company. The plaintiff brings this appeal.

It is without dispute in the evidence that the alleged collision did, in fact, occur. The agency of either of the drivers of the colliding vehicles is neither controverted nor denied.

It is insisted that appellant was due the general affirmative charge against the DeLuxe Cab Company. There is clearly no merit in this position. When the evidence is considered in its various aspects there can be no doubt that a jury question was posed. McMillan v. Aiken, 205 Ala. 35, 85 So. 135.

Ernest Armstrong was the driver of the car which belonged to the Dahart Ice Cream Company. With reference to this person, appellant's counsel asked a witness: 'Do you know of your own knowledge whether or not he plead guilty to reckless driving in the Police Court?'

If the court was in error in disallowing the answer (a question we do not decide), it was without ultimate injury to the rights of appellant. At a subsequent time in the proceedings Armstrong declared that this was a fact, and his admission was never controverted. Walker v. Graham et al., 233 Ala. 539, 172 So. 655; Parsons v. State, 32 Ala.App. 266, 25 So.2d 44.

It appears that about three years prior to the time of instant concern the appellant sustained rather serious personal injuries incident to a collision between a car in which she was riding and a bus. In the case at bar she claimed among her injuries a fracture to her skull. A controversial factual issue arose during the progress of the instant trial relating to the inquiry of whether or not appellant suffered this specific injury at the time of the prior or present collision.

One of appellant's witnesses was interrogated both on direct and cross examination with reference to what he observed about appellant's head when he saw her at the hospital soon after the collision which is the basis of the case at bar. In each instance the witness replied in effect that he did not look at appellant's head and knew nothing about any injury thereto.

On redirect examination counsel asked the same witness: 'I am going to ask you then for the purpose of refreshing your recollection, whether or not you noticed a swollen place on the girl's head on the left hand side near her forehead, with reference to Carrie Lee and she appeared to be in a dazed condition?'

The court properly sustained the objections to this highly leading question. It is not contemplated that the right to refresh a witness' recollection should relate to a matter about which it is evident he could have no basis for an intelligent reply.

Assignment of error number 25 is predicate on the action of the court in overruling appellant's objections to a question to which there was a negative answer. As the interrogation was framed, this response could not in any manner have prejudiced the rights of the objector. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Rogers v. State, 15 Ala.App. 148, 72 So. 689.

Assignments of error numbered 26, 27, and 30 are based on the action of the court in overruling objections of appellant's counsel to certain questions. In each instance only general grounds are stated in support of the objections. Unless the evidence is manifestly irrelevant and illegal, error will not be predicated on the action of the court in overruling objections which are based only on the general grounds. Johnston v. Isley, 240 Ala. 217, 198 So. 348; Carter v. State, 16 Ala.App. 184, 76 So. 468.

A general objection to a question has the effect of waiving all special grounds. Rogers v. Whittle, 15 Ala.App. 550, 74 So. 96.

Appellant's counsel objected to two hypothetical questions which were propounded to a medical expert. Some latitude is permitted here, and it is not required that every fact relating to the inquiry and shown by the preceding evidence be included in the question. The sufficiency of the inclusion is committed in a large measure to the discretion of the court. Sovereign Camp, W.O.W. v. Davis, 242 Ala. 235, 5 So.2d 480. We hold that the rule was not violated in this particular.

During the redirect examination of appellant this occurred:

'Q. (By Mr. Gibson): Now, Mr. Hare stated in his statement to the jury, that you sued the Birmingham Electric Company for this same injury.

'Mr. Hare: We object to the testimony of the witness as to what I told the jury. That isn't a question.

'The Court: Sustained.

'Mr. Gibson: We except. You don't deny it, do you?

'Q. Did you sue the Birmingham Electric Company for a fractured skull? A. No, sir.'

The statement to which objections were sustained is not, in fact, a question. Apparently an interruption intervened before the inquiry was completed. It is reasonable to assume that the question which immediately followed was intened to be included. If so, the appellant was afforded the full benefit of the anticipated reply. In any event, as the matter appears in the record, we are not authorized to base reversible error.

Many of the assignments of error are predicated on the action of the court in giving certain written instructions at the instance of the defendants below. Some of these can be appropriately grouped for review.

We consider first those identified and numbered, DeLuxe...