Insurance Co. of North America v. Mays

• Decision Date: 22 April 1965
• Docket Number: 6 Div. 117
• Citation: 174 So.2d 700,278 Ala. 20
• Parties: INSURANCE COMPANY OF NORTH AMERICA v. Howard MAYS.
• Court: Alabama Supreme Court

Page 700

174 So.2d 700

278 Ala. 20

INSURANCE COMPANY OF NORTH AMERICA v. Howard MAYS.

6 Div. 117.

Supreme Court of Alabama.

April 22, 1965.

Porterfield & Scholl, Birmingham, for appellant.

Nelson Vinson, Hamilton, for appellee.

LAWSON, Justice.

An automobile owned and driven by William J. McCombs was in a collision with an automobile driven by Howard Mays. McCombs' automobile, which was badly damaged, was covered by a policy of insurance issued by Insurance Company of North America, which policy provided coverage for damage sustained by collision. McCombs filed a claim with Insurance Company of North America in the amount of $1094.20, which claim was paid.

Thereafter, Insurance Company of North America brought this suit, as subrogee, against Howard Mays to recover the amount paid by it to McCombs. The complaint contained a single count wherein it was alleged in substance that the damage to McCombs' automobile was the proximate result of the negligence of Mays. The defendant, Mays, pleaded the general issue in short by consent in the usual form. There was a jury verdict in favor of the defendant. Judgment was entered in accordance with the verdict. Plaintiff filed a motion for new trial. It was overruled. The plaintiff has appealed to this court.

The evidence shows that McCombs lived in Birmingham and was an employee of Supreme Beverage Company. On cross-examination of McCombs counsel for Mays asked him this question: 'What does Supreme Beverage Company do?' Objection interposed by the plaintiff was overruled but the question was never answered. Hence no cause for reversal appears in connection with the trial court's ruling on the objection. Johnson v. Day, 230 Ala. 165, 160 So. 340; Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308; Brooks v. Everett, 271 Ala. 354, 124 So.2d 105.

One Hart, who was a passenger in McCombs' automobile, was a witness for the plaintiff. Hart had brought a damage suit against Mays. On cross-examination of Hart, counsel for Mays asked him the following question: 'How much money are you claiming from Mr. Mays by virtue of your lawsuit?' Objection interposed by counsel for plaintiff was overruled. Hart answered that he did not know. The rule that the overruling of an objection to a question is harmless where the witness answers that he does not know, or does not remember, is applicable here. Tankersley v. Webb, 263 Ala. 234, 82 So.2d 259, and cases cited. However, it is permissible to cross-examine a witness to ascertain his interest, bias, prejudice or partiality concerning the matters about which he is testifying. Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426, and cases cited. It is competent to show a community of interest, if it exists, and any material fact tending to show bias, prejudice or interest of the witness. Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448.

This brings us to a consideration of the remaining question, whether, under the evidence adduced upon the trial, the trial court committed error in refusing to grant a new trial on grounds which, in effect, took the point that the verdict was not sustained by the great preponderance of the evidence. § 276, Title 7, Code 1940.

In brief filed here on behalf of Mays, it is conceded that the evidence adduced at the trial shows that Mays was guilty of negligence, and it is clear that his negligence was a proximate contributing cause to the damage done to McCombs' automobile.

We will set out a brief summary of the evidence as it bears on Mays' negligence. The collision occurred on or very near a curve in a no-passing zone on U. S. Highway 78 in Walker County. At that point the highway had only two lanes. Mays was proceeding in a westerly direction towards Jasper at a speed estimated as being from fifty to sixty-five miles an hour or more. A truck was immediately in front of Mays and two or three cars were in front of the truck. Just before the collision occurred Mays made an effort to pass the vehicles ahead of him, all of which, like Mays' vehicle, were proceeding in a westerly direction in the north lane designated for west-bound traffic. The evidence is somewhat in conflict as to how far Mays pulled into the lane designated for eastbound traffic preparatory to making his move to pass the vehicles ahead of him. But it is without dispute that Mays pulled out far enough to see an automobile coming towards him headed in an easterly direction. He realized that he could not safely pass the vehicle ahead of him, so he moved his automobile to the right in order to get back into his lane. As Mays moved his car back into his lane of traffic it was so close to the truck that he had to apply his brakes 'unusually fast' and the automobile got out of control, according to Mays' statement. After the brakes on Mays' automobile were so applied it cut to the left into the lane designated for traffic moving in an easterly direction and completely blocked that lane. Mays' automobile skidded 'broadside' down the south lane designated for east-bound traffic at a speed estimated as being from fifty to sixty-five miles an hour. McCombs' automobile, which was moving in an easterly direction, ran into the side of Mays' automobile. It is without dispute that the collision occurred completely in the south lane, that in which McCombs was traveling in an easterly direction.

It is May's contention that the trial court correctly refused to grant plaintiff a new trial for the reason that the evidence shows that McCombs was guilty of contributory negligence. The contention of Mays, the appellee, is expressed in the brief filed here on his behalf in the following language:

'* * * The appellee did not infer that he was free from negligence; it is not argued by your writer that the appellee was free from negligence. However, the appellee strongly insists that the appellant's insured driver [McCombs] was on said occasion also guilty of contributory negligence. * * *

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'It is conceded by the appellee that the appellee was negligent on said occasion. However, it is also urged, and the jury found and the trial court refused to disturb the jury's finding, that the appellant's insured driver was guilty of contributory negligence on said occasion. * * *'

We come now to a consideration of the evidence as it relates to the manner in which McCombs was operating his automobile at the time of the collision.

The McCombs automobile was moving at a speed of not more than fifty miles an hour in a zone where the speed limit was sixty miles an hour. McCombs' automobile was pulling a trailer on which was loaded an aluminum boat. The trailer did not have brakes. Neither the McCombs automobile nor the trailer ever...