Hamilton v. Browning

Decision Date10 March 1952
Docket Number5 Div. 526
Citation257 Ala. 72,57 So.2d 530
PartiesHAMILTON v. BROWNING.
CourtAlabama Supreme Court

Denson & Denson and Yetta G. Samford, Jr., Opelika, for appellant.

Smith & Smith, Phenix City, and L. J. Tyner, Opelika, for appellee. In substance Count 3 of the complaint alleges that on, to wit, October 31, 1949, 'plaintiff was riding in an automobile along Torbert Street, a part of the Columbus Highway, at or near its intersection with South 7th Street, in the City of Opelika, Lee County, Alabama, and at said time and place the defendant was driving a passenger motor bus carelessly and heedlessly in willful and wanton disregard of the rights or safety of others, and with knowledge that he would very likely injure or damage the plaintiff, and as a proximate consequence wantonly ran the said passenger motor bus into collision or against the automobile in which plaintiff was riding, and against plaintiff, and thereby and as the proximate result and consequence thereof plaintiff was * * * injured,' etc.

The following charge was refused to defendant: 'M. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this case that the plaintiff knowingly and voluntarily rode in the automobile of Adams, knowing at the time here in question that he had been drinking intoxicating liquor, and that his condition, due to drinking intoxicating liquor, proximately contributed to her alleged injuries and damages, in the slightest degree, then you cannot find for the plaintiff under Counts 1 or 2 of the complaint herein.'

This charge was given at plaintiff's request: '5. The Court charges the jury that if you believe from the evidence in this case that the plaintiff is entitled to recover, in estimating the amount of damages she is entitled to, if any, you may take into consideration the disabling effect of the injury or injuries, past and prospective, loss of time, loss of profits, doctors and medicine bills reasonably incurred, the incapacity to do as profitable labor as before the injury, and the mental and physical suffering caused by such injury.'

LAWSON, Justice.

In the early hours of the morning of October 31, 1949, there was a collision of two motor vehicles in the city of Opelika. Mrs. Alma Browning and G. W. Adams were riding in an automobile traveling in a westerly direction on Torbert Street, a part of U. S. Highway 241, which automobile collided with a passenger bus owned and driven by J. P. Hamilton, which had entered or was about to enter said street or highway from South Seventh Street, which street runs into Torbert Street from the north.

Mrs. Browning received serious and permanent injuries. She filed this suit in the circuit court of Lee County against J. P. Hamilton to recover damages for such injuries. There are four counts in the complaint, all of which went to the jury. The first two counts charged negligence and the last two wantonness.

Hamilton demurred to the complaint. The demurrer was overruled. Hamilton then pleaded in short by consent as follows: 'Comes the defendant, and, for answer to the complaint in this cause and to each count thereof, separately and severally, pleads in short by consent the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, to have effect as if so pleaded and with leave to plaintiff to give in evidence any matter which, if well pleaded, would be admissible in reply to such defensive matter, to have effect as if so pleaded.'

The jury returned a general verdict in favor of the plaintiff in the sum of $6,000. Judgment was for that sum, together with costs. The defendant's motion for a new trial having been overruled, he has appealed to this court.

Some slight reference is made to the action of the trial court in overruling the demurrer to Count 3 of the complaint, one of the wanton counts. In view of the meager treatment given this matter in brief, we might decline to review the judgment of the trial court overruling the demurrer to Count 3 of the complaint. Louisville & N. R. Co. v. Morgan, 114 Ala. 449, 22 So. 20. We observe, however, that Count 3 is in material respects in the same language as Count 3 held good in Daniel v. Motes, 228 Ala. 454, 153 So. 727, which count is set out in the report of that case. See Brooks v. Liebert, 250 Ala. 142, 33 So.2d 321. The demurrer to Count 3 was overruled without error.

We need not stop to inquire as to the sufficiency of Count 4 on demurrer. It is clear enough Count 3 and Count 4 each presented the same issue, and evidence offered under either count was admissible under the other. The verdict is properly referable to either count. We do not say that Count 4 was bad as subject to demurrer interposed, but if it should be conceded that such was the case, the action of the court in overruling the demurrer thereto would be error without injury. Louisville & N. R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203; Brush v. Rountree, 249 Ala. 567, 32 So.2d 246.

The rule in respect to a motion by the defendant to exclude all the plaintiff's evidence is that the trial court will not be put in error for refusing the motion, nor will it be put in error for granting it if the evidence does not make a prima facie case. Mt. Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710. See Johnson v. Shook & Fletcher Supply Co., 245 Ala. 123, 16 So.2d 406; Stevens v. Deaton Truck Line, Ala.Sup., 54 So.2d 464.

If the 'general issue in short by consent' is pleaded, it does not permit of special defenses. Hirschfelder v. Mitchell, 54 Ala. 419. But, if the plea further states in effect that any matter in defense may be proved, the door is open to any special defense. Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897; Security Finance Co. v. Kelly's Tire Shop, 216 Ala. 642, 114 So. 298. When the pleas are so framed, the contrary not appearing, it is not necessary that the record show consent, further than the statement in the plea. Security Finance Co. v. Kelly's Tire Shop, supra. See Green v. Marlin, 219 Ala. 27, 121 So. 19.

The plea in this case is in a form sufficient to include the defense of contributory negligence as to the first two counts which charged negligence. Wilhite v. Webb, 253 Ala. 606, 46 So.2d 414.

The trial court, upon the oral request of counsel for plaintiff, charged out the defense of contributory negligence. We cannot agree with counsel for appellant that this action of the trial court was based on a misconception of the plea in short by consent. Counsel for appellant, however, seems to argue that the trial court charged out the defense of contributory negligence on the theory that under the plea filed by the defendant, that defense was not an issue. It is true that counsel for appellee made a statement to the court to that effect. But the record shows that the trial court did not agree with this position of counsel for appellee. It seems clear to us that the trial court charged out the defense of contributory negligence on the ground that there was no evidence to support such a defense.

If there was any evidence tending to establish the defense of contributory negligence, then the trial court erred to a reversal in excluding that issue. Mobile City Lines v. Orr, 253 Ala. 528, 45 So.2d 766. On the other hand, if there was no evidence going to show that appellee was guilty of negligence which proximately contributed to her injury, then the trial court did not commit reversible error in so instructing the jury. King v. Brindley, 255 Ala. 425, 51 So.2d 870. This is true even though there was no written request for such action by appellee. See Alabama Produce Co. v. Smith, 227 Ala. 330, 150 So. 148.

Appellant argues that there was evidence from which the jury could have found that appellee was driving the car in which she was riding at the time of the collision and that the manner in which she was driving constituted negligence which proximately contributed to her injury.

The testimony of the appellee and of her companion, Adams, is positive to the effect that Adams was driving the automobile and the testimony of appellant is to the same effect. On cross-examination of Adams, he was asked if he did not say to a policeman by the name of Hilliard some time after the collision, 'I got the woman to drive the car because I was drinking.' He denied making such a statement. Hilliard, called as a witness for appellant, testified that Adams told him, 'I got the woman to drive the car over because I had been drinking,' Such statement was not shown to have been a part of the res gestae or to have been made in the presence of appellee, plaintiff below. The trial court, in regard to this part of Hilliard's testimony, orally charged the jury as follows: 'There is some testimony here about attempting to impeach the testimony of a witness in that he made certain statements. That is offered solely for the purpose of affecting the credibility of the witness whose testimony is being impeached, and it is left with you as to what weight you will give his testimony. That is the only purpose of the alleged impeaching evidence.' No exception was taken to this part of the charge. Hilliard's testimony as to what he says Adams said to him is the only indication in the case that appellee was driving the automobile. Under the circumstances, it was not evidence going to show that appellee was driving the automobile. Engel v. Davis, Ala.Sup., 57 So.2d 76, and cases cited. It is our view of the record that it contains no evidence going to show that appellee was the driver of the automobile in which she was riding.

Adams's negligence, if any, could not be imputed to appellee, his guest, as there is no proof that plaintiff had any authority over the car's movement in any manner. Moore v. Cruit, 238 Ala. 414, 191 So. 252, and cases cited; Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So.2d 299; Utility Trailer Works v....

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