Helton v. Easter

• Decision Date: 11 December 1962
• Docket Number: 1 Div. 890
• Citation: 148 So.2d 486,41 Ala.App. 648
• Parties: Earl HELTON v. Glendon R. EASTER.
• Court: Alabama Court of Appeals

Page 486

148 So.2d 486

41 Ala.App. 648

Earl HELTON v. Glendon R. EASTER.

1 Div. 890.

Court of Appeals of Alabama.

Dec. 11, 1962.

B. E. Jones and R. L. Jones, Evergreen, for appellant.

David M. Nettles and John M. Coxwell, Monroeville, for appellee.

JOHNSON, Judge.

Appellant, Earl Helton, hereinafter referred to as defendant and cross-complainant, appeals to this Court from a $1,000.00 judgment rendered against him by a jury verdict in the Monroe County Circuit Court. Glendon R. Easter is the plaintiff, appellee and cross-defendant herein.

This suit grew out of an automobile accident which, under the undisputed evidence, occurred on Alabama State Highway 21, which runs generally north and south but which runs east and west at the point of the accident which occurred between Beatrice and Riley, Alabama. Appellee, Easter, was traveling from his home in north Alabama to Pensacola, Florida, and appellant was traveling east from Beatrice. The point of collision of the automobiles was in front of a filling station which was located on appellee's right and appellant's left, and was just below the crest of a hill that defendant was ascending at the time of the accident. Plaintiff had just driven over the crest of the hill. There was a horseshoe shaped driveway connecting the filling station with the highway at two points and the point of impact was on the appellee's side of the highway near the westerly connection with the driveway.

Easter testified that his own automobile lights were on at the time of the accident, while Helton, the appellant, testified that he had not turned on his automobile lights and 'there wasn't no lights nowhere'. A witness, Harwell Hines, testified that both automobiles had their lights on at the time of the impact. Appellee testified that he had been going 50 miles per hour or less and that he had slowed down in order to look for a motel, and appellee's wife, Mrs. Glendon R. Easter, corroborated her husband's testimony. The appellant testified that appellee was going 70 or 75 miles per hour at the time of the accident, but that he himself had slowed down to 7 or 8 miles per hour from a speed of 15 or 20 miles per hour in order to turn into the filling station. Appellant further testified that he never drives over 30 or 35 miles per hour. Easter testified that he first saw the appellant when he, accompanied by his wife, drove over the top of the hill and that at that time the appellant appeared to be 'coming on normal' on his side of the road but that appellant 'turned over to the left and we ran together there'. Helton testified that he did not see Easter but that he could see 360 feet ahead and that he, Helton, gave a turn signal with his hand before turning left in the highway.

Harwell Hines testified that he saw the accident from his car in the driveway at the edge of the highway, and that he saw both vehicles and that he knew of nothing to prevent the driver of either from seeing the other's car.

Helton testified that he was not drunk and had not been drinking, while other witnesses who saw him after the accident differed in their opinions as to whether or not he smelled of alcohol.

The appellee originally filed in the Circuit Court a complaint in two counts. Count I sought recovery on simple negligence, while Count II was based on wanton misconduct. The defendant's demurrer to Count I was overruled and sustained as to Count II. Plaintiff then amended his complaint as to both counts. To the complaint as amended defendant's demurrer was overruled. After an agreement between the parties to plead in short by consent, the defendant filed his plea of the general issue to both counts of the complaint and the plea of contributory negligence to Count I. The defendant filed pleas A and B which were pleas of recoupment and counter claim and which charged the appellee with negligence and wanton misconduct, respectively. Although we do not observe from the records any replications to, or joinder of issue on, the counter claim or cross-complaint, evidence was nevertheless received by the Court on these issues at the trial. In this there was no error and the Trial Court properly treated the issues as joined. Jefferson Life & Cas. Co. v. Williams, 37 Ala.App. 718, 76 So.2d 185; Nat. Life and Acc. Ins. Co. v. Curtin, 33 Ala.App. 50, 29 So.2d 577.

The record before us reflects thirty-nine assignments of error. Of this number, assignments 1, 2, 4, 5, 6, 7, 8, 9, 16, 17, 18, 20, 22, 23, 26, 30, 33, 34 and 35 were waived because they were not argued by the appellant. Rogers v. W. M. Dunbar Co., 39 Ala.App. 180, 96 So.2d 710; Pierce v. Floyd, 38 Ala.App. 439, 86 So.2d 658; Foreman v. Smith, 272 Ala. 624, 133 So.2d 497.

Assignment of Error 3 is without merit because there is no Judgment Entry of the court's action in overruling the defendant's demurrer to Count II of the complaint. We observe, under what purports to be the Judgment Entry in this cause, the following: 'This March 28, 1960, defendants demurrers to plaintiffs Count 2 sustained and overruled as to Count one. Plaintiff amends Complaint and defendant refiles same demurrers to each Count of Complaint as amended and demurrers overruled.' This is all that the record in this cause reflects with reference to a ruling on the demurrer by the court. Such language does not constitute a judgment either sustaining or overruling the demurrer, and, under the rule long prevailing in Alabama, the appellant can take nothing by an assignment of error based upon such recitals. Tallassee Falls Mfg. Co., for use, etc., v. Western Ry. of Ala., 128 Ala. 167, 29 So. 203; Jasper Merchantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583; Empire Guano Co. v. Ellis, 19 Ala.App. 463, 98 So. 38.

We quote in part from Ala. Fuel and Iron Co. v. Vaughan, 205 Ala. 589, 88 So. 857: '* * * the ruling on the demurrer is not available to appellant because no judgment thereon is shown by the record. A mere recital in the minute entry that the demurrer was overruled is not sufficient.'

Assignments of Error 10, 11, 12, 13, 14 and 15 are without merit. Assignments of Error 10 and 11, which relate to the refusal of the court to give appellant's requested charge No. 8, are without merit because the charge is argumentative as was a charge nearly identical therewith discussed in Whaley v. Sloss-Sheffield Steel & Iron Co., 164 Ala. 216, 51 So. 419. Such charge is as follows: 'Charge No. 8. If, after consideration of all the evidence in this case, the jury finds that the cause of the accident which caused plaintiff's injury lies wholly within the realm of conjecture and doubt, you must find a verdict in favor of the Defendant.' The Supreme Court in Whaley said, 'The court can give or refuse such charges without committing error.'

Assignments of Error 12, 13, 14 and 15, relating to refusal of defendant's charges 10 and 11, are not well taken because the instructions therein contained were adequately covered by the oral charge and by defendant's, or cross-complainant's, charges 12 and 13 which were given. Even if these charges were correct, it was harmless error to refuse them. Montgomery City Lines v. Davis, 261 Ala. 491, 74 So.2d 923.

Assignments of Error 19, 21, 24, 25, 27, 28, 29, 31, 32, 36 and 37 are well taken.

Contrary to the contention of the appellee, the giving of correct oral charges by the trial court does not cure errors contained in given written charges. In discussing this proposition, our Chief Justice Livingston said in Robinson v. Morrison, 272 Ala. 552, 133 So.2d 230:

'Appellant contends that error was committed in giving three charges at the request of defendant relative to plaintiff's contributory negligence, which fail to hypothesize that the plaintiff's negligence must proximately contribute to her injuries. It is well settled that giving such a charge is reversible error, and that the error is not cured either by correct, written charges requested by the litigants (unless specifically requested to correct the erroneous ones) or by the oral charge. Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Terry v. Nelms, 256 Ala. 291, 54 So.2d 282.'

Plaintiff's requested charge 2 assigned as error No. 19 is as follows:

'P 8. The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the defendant, Helton, intentionally drove his automobile across the road in front of the plaintiff with knowledge that the plaintiff was approaching, or with knowledge of facts which would have put him on notice that the plaintiff might be approaching you cannot charge the plaintiff with contributory negligence under Count One of the complaint.'

This charge erroneously contains instructions that if the jury is reasonably satisfied that defendant intentionally drove his automobile in front of the plaintiff, the plaintiff could not be contributorily negligent. That the jury must also be satisfied under the charge that the defendant knew or should have known that plaintiff was approaching does not mean that the jury had to be satisfied that defendant's intentional act was negligent or wanton. The charge is erroneous because it does not define the degree of care the defendant owed the plaintiff or require that the jury be satisfied that the defendant breached any legal duty or that the defendant's conduct proximately caused plaintiff's injuries. First Nat. Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So.2d 18; Johnson v. McNear, 255 Ala. 457, 52 So.2d 154; Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824. If the issue of plaintiff's contributory negligence is to be removed from the jury's consideration, the duty owed to the plaintiff by the defendant and breached by him must be one exceeding due care, or, to-wit, the misconduct of the defendant causing the plaintiff's injuries must be wanton. Merely charging the jury that if they are reasonably satisfied that the defendant intentionally drove in front of the plaintiff with knowledge...