Ingalls v. Holleman

• Decision Date: 25 March 1943
• Docket Number: 6 Div. 28.
• Parties: INGALLS v. HOLLEMAN.
• Court: Alabama Supreme Court

12 So.2d 751

244 Ala. 188

INGALLS v. HOLLEMAN.

6 Div. 28.

Supreme Court of Alabama

March 25, 1943

Marvin Woodall, of Birmingham, for appellant.

Harsh & Hare, of Birmingham, for appellee.

BOULDIN Justice.

The action is for personal injuries and property damage resulting from an automobile collision on a public street in Birmingham.

Count 1 of the complaint, upon which the trial was had, as first amended, charged that the defendant, Robert I. Ingalls, Jr. negligently caused or allowed said automobile, of which he was in charge or control, to run into or against the automobile in which plaintiff was riding, and as a proximate consequence of said negligence of defendant, plaintiff suffered said injuries. The evidence throughout disclosed defendant was not personally present in control of the car which collided with plaintiff's car, driven by her at the time, but defendant's car was being operated by James Seals, a domestic servant, while acting in the line and scope of his employment, etc.

During the argument of counsel for defendant, he, in compliance with Circuit Court Rule 34, called attention of the court to a variance, and gave notice that an affirmative charge would be asked upon that ground.

On conclusion of his argument, plaintiff, over the objection and exception of defendant, was permitted to amend the complaint so as to base the case on the law of respondeat superior.

Under the liberal rule of our statute, Title 7, § 239, Code of 1940, such amendment must be allowed "whilst the cause is in progress * * * unless injustice will thereby be done to the opposite party," etc.

No surprise attended this amendment. The amendment, dealing with the basis of liability, conformed to the case known from the date of the accident; and upon which the evidence proceeded throughout the trial without objection on the ground of variance.

That the amendment related to the same cause of action, "the same transaction," the same "property," and the same "parties" to the action is clear. The amendment was within the statute, supra.

Circuit Court Rule 34 reads: "In all cases where there is a variance between the allegations and proof, and which could be cured by an amendment of the pleading, the trial court will not be put in error for admitting such proof unless there was a special objection making the point as to the variance. And the general objection that the same is illegal irrelevant and immaterial will not suffice. Nor will the trial court be put in error for refusing the general charge predicated upon such variance, unless it appears from the record that the variance was brought to the attention of the said trial court by a proper objection to the evidence."

The language of this rule needs no interpretation. A variance such as here involved, if such it be, can be taken advantage of only by proper objection to the evidence.

Allowance of the amendment was proper, but, by this rule, is rendered unnecessary.

Variance in a criminal case, by failure of proof of some material fact as alleged in the indictment, is governed by different rules. No amendment to an indictment is allowable, without defendant's consent.

The affirmative charge for failure of proof to make out a case of liability is not of this class. Authorities dealing with criminal cases, or failure of proof to make out a case, are not in point. Circuit Court Rule 35 deals with reopening the case after argument concluded to admit evidence to supply omissions therein defined. It has no application here. There was no error in allowing the amendment. See Anno. to § 239 supra; Carter v. Shugarman, 197 Ala. 577, 73 So. 119; Futvoye v. Chuites, 224 Ala. 458, 140 So. 432.

The collision occurred while both cars were proceeding south on 29th Street approaching 13th Avenue, South; and while the driver of defendant's car was attempting to pass plaintiff's car. The passing car side-swiped the other.

Plaintiff's evidence tended to show she was proceeding on her side of the street, and the other car crossed the center line, causing the collision. Defendant's evidence tended to show that plaintiff turned her car to the left as the other was about to pass, causing the collision.

Betty Wilkinson, witness for plaintiff, testified as an eye-witness to the accident. On direct examination, she was asked: "Was she (the plaintiff) turning to the left or to the right or was she continuing straight?" Objection to the question because leading was overruled. Exception reserved. In general the allowance of leading questions is in the discretion of the court. In this instance the witness had already testified the passing car turned to the right toward plaintiff's car and she did not cut her car to the left. We do not consider the question leading. It called for one of three answers in the alternative, the question carrying no suggestion of the answer desired. Assuming the witness knew her answer was favorable to plaintiff, this did not arise from the form of the question. For all these reasons, there was no error here.

The plaintiff, a witness in her own behalf, testified at considerable length on direct examination touching the facts attending the collision, the extent of her injuries, the treatment by her physician, the extent and nature of her pain and suffering for some eleven months intervening between the accident and the trial. In concluding her direct examination, the record shows the following:

"'I was in Court here yesterday. I went home last night. As to your question, "What experience, if any, as to pain and discomfort did you have last night?"' (After hesitating) 'Shall I tell it?'

"Q. 'Yes. Were you well or sick. I don't want to hurry you with it-were you well or sick?'

"Here the plaintiff suddenly shed tears, and made no response to the question.

"Mr Hare. 'Mr. Woodall, you take the witness.'

"Mr. Woodall. 'I ask for a recess, Your Honor, so the witness can get composed.'

"A brief recess was had, and the jury retired, and while the jury was out the following proceedings were had before the Court, while the plaintiff was sitting in the witness seat immediately next to the bench at which sat the Judge Presiding:

"Mr Woodall. 'At this time, may it please the Court, while the jury is still out on this recess, before they come in, I desire to make a motion. This testimony, so far is such as it will be a case of subjective injury, she says she was making no claim about that leg,...