Holley v. Josey, 4 Div. 779

CourtSupreme Court of Alabama
Writing for the CourtLIVINGSTON; Foster; And further
Citation82 So.2d 328,263 Ala. 349
Docket Number4 Div. 779
Decision Date14 April 1955
PartiesO. G. HOLLEY et al. v. Z. H. JOSEY.

Page 328

82 So.2d 328
263 Ala. 349
O. G. HOLLEY et al.
v.
Z. H. JOSEY.
4 Div. 779.
Supreme Court of Alabama.
April 14, 1955.
Rehearing Denied Sept. 22, 1955.

[263 Ala. 350] Albrittons & Rankin, Andalusia, for appellants.

Prestwood & Prestwood, Andalusia, for appellee.

LIVINGSTON, Chief Justice.

Z. H. Josey filed suit in the Circuit Court of Covington County, Alabama, against O. G. Holley, W. T. Reeves and J. V. Burkett [263 Ala. 351] claiming damages for the death of his minor son, Murry Austin Josey. The complaint consisted of two counts: Count 1 for simple negligence, and Count 2 for the willful or wanton misconduct of the defendants. The defendants, O. G. Holley and W. T. Reeves, interposed demurrers to each count of the complaint, which were sustained as to Count 2 of the complaint and overruled as to Count 1. No error is assigned concerning the sufficiency of Count 1 of the complaint. The defendants

Page 329

pleaded in short by consent the general issue with leave, etc. Count 1 of the complaint was submitted to the jury as to all three of the defendants, and resulted in a judgment against all three defendants in the sum of $6,500. Timely motions by defendants Holley and Reeves were overruled by the trial court, and they appealed. Burkett did not appeal, nor did he join in the appeal of Holley and Reeves.

We will set out only so much of the testimony as is necessary to a discussion of the points raised by the Assignments of Error.

Murry Austin Josey was killed on a public highway at about 1:00 a.m. on July 13, 1952.

On the night of July 13, 1952, appellant Holley carried a group of baseball players of the Greenville, Alabama, semi-pro baseball team to a semi-pro baseball tournament at Andalusia, Alabama. After the game, which seems to have been delayed by rain, W. T. Reeves, one of the Greenville players, was driving Mr. Holley's automobile with Mr. Holley seated on the front seat by him, and three Greenville players riding on the rear seat of this automobile as the car left Andalusia to return to Greenville. After the automobile driven by Mr. Reeves passed Red Level the occupants of the automobile driven by him saw another automobile on front of them. Although Mr. Reeves and the parties in his car did not know this fact as they approached the car in front of them, it was owned and being driven by Mr. J. V. Burkett, the other defendant in the court below. The section of the road was hilly, and while Mr. Reeves was driving close behind the car which was driven by Mr. Burkett, both cars passed over the body of Murry Austin Josey. The testimony was to the effect that neither automobile was exceeding the speed limit. Both cars stopped after passing over the body of Murry Austin Josey. Upon examination, Josey was found to still be alive, but died within a few minutes.

Josey was killed about a mile and a quarter to a mile and a half in a northerly direction from Red Level and towards McKenzie. The testimony is to the effect that after passing through Red Level, the Holley car being driven by Reeves was some considerable distance behind the Burkett car, which was not being driven as fast as the Holley car. For the purpose of passing, the Holley car approached to within a short distance of the Burkett car, variously estimated from 20 to 50 feet. As the two cars passed over the crest of a hill in this position, Burkett, according to his testimony, saw in the right lane of the highway in the direction he was driving, what he thought was a paste board box top, or some other object. Burkett testified that he did not have time to stop his car but straddled the object with the wheels of the car. He further testified that he heard a light lick underneath his car as he passed over the object.

Mr. Holley's testimony, and that of the occupants of his car, was to the effect that the first time they saw Josey he came out from under the rear wheels of the Burkett car, and that the Burkett car was bumping over it, and the body was turning counter-clockwise to the direction in which they were going. This testimony was also to the effect that the Holley car straddled the body of Josey, but did not touch it, and the wheels did not run over him. Burkett further testified that the Holley car had blown at him at one or two intervals down the highway, indicating an intention to pass, but the car never passed him.

Officers summoned to the wreck made an examination of the roadway at the point and later made an examination of the underside of the Holley car. They testified that they found hair, blood and threads of cloth under the Holley car. Mr. Brooks, [263 Ala. 352] the Assistant State Toxicologist, examined the Holley car in Montgomery four days after the accident, but testified that he saw no blood, hair, nor fragments of cloth underneath the Holley car, but that he did see where some slight rubbing had occurred under the Holley car. Dr. Rehling, the State Toxicologist, made an examination of objects found on the underside running

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gear of the Burkett car, and found that it contained blood, hair and clothing.

Young Josey was last seen the night of July 13th between 12 and 1 o'clock on the highway leading from McKenzie to Red Level trying to thumb a ride. He was on the opposite side of the highway from which his body was found. Two witnesses who went to the scene of the accident about daylight the morning of the accident testified that they found on the left side of the highway in the direction in which the cars were going, and at about the edge of the blacktop, a piece of a cap, some teeth and a piece of flesh with a bone in it, a piece of watch chain, and blood marks on the pavement. They further testified that these objects were some 20 or 30 feet from the spot where young Josey's body finally came to rest, and from the body, was in the direction from which the cars were approaching. The blood marks angled across the roadway to near the point where Josey's body was picked up. A part of a cap was also found near the spot where Josey's body was picked up. Burkett testified that the lights from the Holley car were shining in his rear-view mirror and distracted him to a certain extent near the point where the two cars passed over Josey's body.

Appellant's Assignments of Error contain eleven grounds. Assignments 1 and 11 are based upon the trial court's action in refusing to grant appellant's motion for a new trial. Assignments 2, 3, 4, 5 and 7 are based on the trial court's refusal of the affirmative charge for the defendants in various forms.

In the case of White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479, 480, this court said:

'1. That, while public highways are open to the proper use of automobiles and other motor vehicles, the law exacts of operators of such machines therein a prudent and careful regard for the rights of others who are or may be lawfully using the public way; and the operator is liable for the consequences of negligence, in the operation of any such motor vehicle, to the injury of another traveler who is in the proper use and enjoyment of the common highway....

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12 practice notes
  • First Nat. Bank of Birmingham v. Brown, 6 Div. 828
    • United States
    • Supreme Court of Alabama
    • July 29, 1971
    ...of error, the appellant has not substantially argued the assignment of error as required by Supreme Court Rule 9. Holley v. Josey, 263 Ala. 349, 82 So.2d 328; Morgan v. Cherokee Co. Bd. of Educ., 257 Ala. 201, 58 So.2d 134; Alsup v. Southern Mfg. Co., 248 Ala. 405, 27 So.2d 781. The assignm......
  • Browning v. Shackelford, No. 44255
    • United States
    • United States State Supreme Court of Mississippi
    • March 13, 1967
    ...beyond his range of vision. Appellants maintain that his failure to do this constituted wanton conduct, citing Holley v. Josey, 263 Ala. 349, 82 So.2d 328 Appellants further urge that the failure of appellee to sound his horn as he approached the crest of the hill should be considered in de......
  • Casey v. Krump, 1 Div. 628
    • United States
    • Supreme Court of Alabama
    • September 15, 1955
    ...made by physicians as late as January 1950 showed that his mental condition had grown worse. The proof showed that senile psychosis is a [263 Ala. 349] chronic progressive disease and becomes worse as a person grows older. There is proof tending to show that Mildred Casey knew about the men......
  • Miller v. Cleckler, 2090195.
    • United States
    • Alabama Court of Civil Appeals
    • June 11, 2010
    ...1144 (Ala.1977)). In general, a driver has the duty to exercise due care and to keep a lookout for others using the road. Holley v. Josey, 263 Ala. 349, 354, 82 So.2d 328, 332 (1955). " '[E]ven if a motorist complies with all the requirements of a statute or ordinance regulating the operati......
  • Request a trial to view additional results
12 cases
  • First Nat. Bank of Birmingham v. Brown, 6 Div. 828
    • United States
    • Supreme Court of Alabama
    • July 29, 1971
    ...of error, the appellant has not substantially argued the assignment of error as required by Supreme Court Rule 9. Holley v. Josey, 263 Ala. 349, 82 So.2d 328; Morgan v. Cherokee Co. Bd. of Educ., 257 Ala. 201, 58 So.2d 134; Alsup v. Southern Mfg. Co., 248 Ala. 405, 27 So.2d 781. The assignm......
  • Browning v. Shackelford, No. 44255
    • United States
    • United States State Supreme Court of Mississippi
    • March 13, 1967
    ...beyond his range of vision. Appellants maintain that his failure to do this constituted wanton conduct, citing Holley v. Josey, 263 Ala. 349, 82 So.2d 328 Appellants further urge that the failure of appellee to sound his horn as he approached the crest of the hill should be considered in de......
  • Casey v. Krump, 1 Div. 628
    • United States
    • Supreme Court of Alabama
    • September 15, 1955
    ...made by physicians as late as January 1950 showed that his mental condition had grown worse. The proof showed that senile psychosis is a [263 Ala. 349] chronic progressive disease and becomes worse as a person grows older. There is proof tending to show that Mildred Casey knew about the men......
  • Miller v. Cleckler, 2090195.
    • United States
    • Alabama Court of Civil Appeals
    • June 11, 2010
    ...1144 (Ala.1977)). In general, a driver has the duty to exercise due care and to keep a lookout for others using the road. Holley v. Josey, 263 Ala. 349, 354, 82 So.2d 328, 332 (1955). " '[E]ven if a motorist complies with all the requirements of a statute or ordinance regulating the operati......
  • Request a trial to view additional results

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