International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas

Decision Date05 August 1971
Docket Number2 Div. 506
Citation252 So.2d 7,287 Ala. 344
PartiesINTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, an Unincorporated Labor Organization or Association, v. Mary B. HATAS, as Special Administratrix of the Estate of William Andrew Hatas.
CourtAlabama Supreme Court
Beddow, Embry & Beddow, Birmingham, Pruitt & Pruitt, Livingston, Raymond W. Bergan, Washington, D.C., for appellant

Robert S. Vance, Roscoe B. Hogan, Birmingham, and Marcus McConnell, Jr., Livingston, for appellee.

LAWSON, Justice.

This suit was filed in the Circuit Court of Sumter County on May 24, 1963, by Mrs. Mary B. Hatas against Edward Grady Partin; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 5, an unincorporated labor organization or association, hereinafter referred to as Local No. 5 (The correct name of Local No. 5 appears to be General Truck Drivers, Warehousemen and Helpers, Local Union No. 5.); and against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, an unincorporated labor organization or association, hereinafter referred to as International.

The suit is a wrongful death action brought under the authority of § 123, Title 7, Code 1940, and plaintiff sues as special administratrix of the estate of William Andrew Hatas, her deceased son.

The case went to the jury on behalf of the plaintiff on an amended complaint consisting of Counts One-A and One-B. In both counts plaintiff sought to recover damages for the death of her son, which occurred on Christmas morning, 1961, at about one o'clock when an automobile in which he was riding as a passenger was struck by another automobile on U.S. Highway 80 in Sumter County. Count One-A charges negligence against all defendants. Count One-B is a wanton count against a servant defendant, Partin, and his alleged masters, the other defendants.

International filed three pleas: not guilty, denial of agency, and denial of the trial court's jurisdiction over the subject matter of the suit. As will hereafter appear, there is no reason to refer to the pleas filed by the other defendants.

The trial began on September 27, 1965. On September 30, 1965, the jury returned a general verdict for the plaintiff against all of the defendants and assessed the plaintiff's damages at $150,000. Judgment was entered on the verdict on the same day that it was returned.

On or about October 14, 1965, the Courthouse of Marengo County, where the official court reporter of the Seventeenth Judicial Circuit maintained her office, was destroyed by fire. All shorthand notes and electronic recordings made by the official court reporter during the course of the trial were consumed by the fire. Marengo and Sumter Counties are both in the Seventeenth Judicial Circuit.

Of the three defendants, only International timely filed a motion for new trial. That motion was duly continued by the trial court from time to time. It was argued and taken under submission on March 4, 1966. On November 10, 1966, the motion for new trial was overruled and denied.

A supersedeas bond was filed by International on March 14, 1967, and was approved by the Circuit Clerk of Sumter County on that day. That bond is so conditioned as to be sufficient as a bond to secure costs of appeal.--Dortch Baking Co.

v. Schoel, 239 Ala. 266, 194 So. 807; Bedwell v. Dean, 221 Ala. 224, 128 So. 389; Greenfield v. Powell, 220 Ala. 690, 127 So. 171. Cf. Ralston Purina Co. v. Pierce, 265 Ala. 365, 90 So.2d 922.

The cause was submitted here on March 18, 1968, on motions and on merits.

Motions

International, apparently out of an abundance of precaution, prior to submission, moved this court 'to make and enter an order of severance permitting this Appellant to make separate assignments of error in this cause and ratifying and confirming the separate assignments of error heretofore filed in said cause by Appellant.'

That motion is denied because there is no need for an order of severance of the assignments of error. As indicated, International alone appealed. Notice was given to the other defendants in accordance with the provisions of § 804, Title 7, Code 1940, to appear before this court and unite in the appeal if they so desired. They have not appeared. The assignments of error made by International complain of error prejudicial to it. See Pennington v. Birmingham Baseball Club, Inc., 277 Ala. 336, 170 So.2d 410; Maya Corp. v. Smith, 240 Ala. 371, 199 So. 549.

The appellee, Mrs. Hatas, prior to submission, filed her 'Motion to Strike Purported Succinct Statement of the Evidence in Lieu of Court Reporter's Transcript; Motion to Dismiss Appeal or In the Alternative to Affirm Judgment of the Court Below,' to which we will refer hereinafter as appellee's motion.

The transcript of the record does not contain a complete transcript of the evidence because, as noted above, all of the court reporter's shorthand notes and electronic recordings were destroyed by fire before some of them could be transcribed.

The record does contain certificates of the trial judge to the effect that certain designated parts of the transcript of the record were approved by him as a 'Succinct Statement of the Evidence in Lieu of a Transcript of the Evidence * * *,' to which we will refer sometimes hereinafter as the succinct statement of the evidence.

A succinct statement of the evidence in lieu of a transcript of the evidence is authorized, 'If the court reporter be deceased, or for any other reason cannot transcribe the evidence, * * *'--s 5 of Act 80, approved June 10, 1953, Acts of Alabama 1953, Vol. 1, p. 122, which Act is amendatory of Act 461, approved July 12, 1943, as amended by Act 886, approved September 12, 1951. Section 5 of Act 80, Supra, with a few immaterial changes, is carried in the 1955 Cumulative Pocket Part to Vol. Two of the 1940 Code of Alabama and in the 1958 Recompiled Code of Alabama (unofficial) as § 827(3), Title 7, and we will refer sometimes hereinafter to the provisions of § 5 of Act 80, Supra, as § 827(3).

Grounds of appellee's motion which attack the succinct statement of the evidence are to the effect that it does not meet the requirements of § 827(3), Supra.

In brief filed in support of appellee's motion it is said, in effect, that International did not attempt to present a succinct statement of the evidence in compliance with § 827(3), Supra; that the transcript of the record does not contain a 'single succinct statement as authorized by the statute'; that 'the evidence contained in the mass of different sections' is unintelligible.

International did present a proposed succinct statement of the evidence to the trial judge, which met with his approval but not with the approval of appellee, who filed objections as authorized by § 2 of [287 Ala. 352] Act 886, approved September 12, 1951, Supra. See 1955 Cumulative Pocket Part After a succinct statement of the evidence is presented to a trial judge, he 'shall hear the same and make such corrections in and additions to it as may be proper and shall approve the same as a transcript of the evidence.'--s 827(3), Supra. The trial judge conducted hearings on several occasions in an effort to arrive at a succinct statement of the evidence satisfactory to both parties. It is perhaps unnecessary to observe that neither party to this appeal is altogether satisfied with the end result, but we entertain the view that the trial judge exercised not only good judgment in his rulings, but demonstrated commendable patience in a difficult situation. Appellee has not pointed out any instance where the succinct statement of the evidence as incorporated in the transcript of the record works to her disadvantage.

to Vol. Two of the 1940 Code of Alabama and the 1958 Recompiled Code of Alabama (unofficial), where the provisions of § 2, Act 886, Supra, are carried as § 827(1a), Title 7.

Appellee is correct in pointing out that the transcript of the record does not contain 'a single succinct statement' in that it is not like a bill of exceptions or a transcript of the evidence which usually begins on a certain page of the transcript of the record and continues on successive pages until completed. But that difference should not deprive International of a right of review.

But appellee, as we have shown, asserts that 'the evidence contained in the mass of different sections' is unintelligible. By 'sections' appellee has reference to the fact that the succinct statement of the evidence as finally approved consists of several different parts of the transcript of the record scattered, so to speak, throughout that transcript.

The end result of the several hearings was an order approving the original succinct statement of the evidence except as it was corrected, changed, or added to by virtue of certain rulings made by the court during the several hearings.

The format of the succinct statement of the evidence incorporated in the transcript of the record has proven to be burdensome to us, but we believe we understand it and the rulings of the trial court incorporated in it, as well as the rulings which resulted in its composition.

While the format of the succinct statement of the evidence has presented some problems to us in disposing of this appeal, we are unwilling to say that the succinct statement of the evidence is so unintelligible as to require us to strike it or to dismiss the appeal or to affirm the judgment below.

There is a ground in appellee's motion to the effect that the appeal should be dismissed because it was not taken within six months from the date of the original judgment (§ 788, Title 7, Code 1940) and that while the transcript of the record showed that a motion for new trial was timely presented to the trial judge, it did not reflect that such motion was filed.

The transcript of the record as filed here originally did not show...

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