Johnson v. Battles

• Decision Date: 01 March 1951
• Docket Number: 6 Div. 123
• Citation: 52 So.2d 702,255 Ala. 624
• Parties: JOHNSON v. BATTLES.
• Court: Alabama Supreme Court

Page 702

52 So.2d 702

255 Ala. 624

JOHNSON v. BATTLES.

6 Div. 123.

Supreme Court of Alabama.

March 1, 1951.

Rehearing Denied May 24, 1951.

McQueen & McQueen and Jas. E. Morrisette, all of Tuscaloosa, for appellant.

Davis & Zeanah, Tuscaloosa, for appellee.

LAWSON, Justice.

This is a suit brought by Mrs. Mae Battles, as administratrix, under the homicide statute, § 123, Title 7, Code 1940, against Thomas Lawrence Johnson for the unlawful death of her husband, George Battles.

The case was submitted to the jury on one count charging simple negligence, and the plea of the general issue in short by consent in the usual form. There was jury verdict for plaintiff. Judgment was in accord with the verdict. Defendant's motion for new trial was overruled and he has appealed to this court.

Reversal of the judgment appealed from is sought on three grounds: (1) that the trial court erred in sustaining plaintiff's objection to certain questions propounded plaintiff's witness Tucker by the defendant on cross-examination; (2) the refusal of the trial court to give the general affirmative charge with hypothesis as requested by the defendant; (3) failure of the trial court to grant defendant a new trial on the ground that the verdict was against the great weight of the evidence.

On cross-examination of Highway Patrolman Tucker, who was called as a witness for the plaintiff, the trial court sustained plaintiff's objections to the following questions:

'Q. Mr. Tucker, you said that you measured skidmarks back up the road from the intersection of seventy-two feet, and I believe you said you had been investigating automobile accidents for five years. From your experience in investigating automobile accidents and other training with the Highway Department, are you able to form an opinion as to the speed of an automobile as indicated by skidmarks?

* * *

* * *

'Q. Mr. Tucker, in your opinion, skidmarks as you saw there and measured, with the type of automobile Mr. Johnson was driving, on a highway of that kind, going down hill, going down a grade, would skidmarks of seventy-two feet indicate to you that the Johnson car was traveling at an excessive rate of speed?

* * *

* * * 'Q. Mr. Tucker, from your experience can you form an opinion from skidmarks on highways such as you observed at the scene of this collision at what speed an automobile making those skidmarks was traveling?'

Assuming that one shown to be an expert may express an opinion as to the estimated speed of an automobile, predicated on the distance the tires 'skidded' or were dragged along the pavement, Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; 70 A.L.R. 544; 156 A.L.R. 383, reversible error does not appear in connection with the trial court's action in sustaining plaintiff's objections to the questions heretofore set out. It is well established that the inquiry as to the competency of a witness to testify as an expert is addressed to the sound discretion of the trial court, whose decision on the evidence will not be disturbed on appeal except for palpable abuse. Kirby v. Brooks, 215 Ala. 507, 111 So. 235; Southern Bitulithic Co. v. Perrine, 191 Ala. 411, 67 So. 601; Neyman v. Alabama Great Southern R. Co., 174 Ala. 613, 57 So. 435. We are not willing to say that it is made to appear clearly that there was any abuse of discretion on the part of the trial court when the only evidence as to the witness' qualification to testify as an expert was that he had been a member of the Highway Patrol for five and a half years, during which time he had investigated many automobile accidents.

The defendant was not entitled to the affirmative charge on the ground that there was not sufficient evidence to go to the jury to show that the death of plaintiff's intestate resulted from injuries received in the automobile collision.

Plaintiff's intestate was injured in an automobile collision which occurred on the highway leading from Tuscaloosa to Birmingham on the afternoon of September 11, 1948, when the 1937 Dodge automobile in which intestate was riding as a passenger collided with an automobile owned and being driven by defendant. Plaintiff's intestate died on March 12, 1949, approximately six months after the accident. The evidence shows that intestate was well and strong prior to the accident and that he was confined to his bed from the time of the accident to the date of his death. The only evidence showing that intestate's death resulted from injury received in the automobile collision was a copy of a death certificate certified by the State Registrar of the Bureau of Vital Statistics of the Alabama Department of Public Health, which was properly certified by the designated bureau clerk. The certificate of death sufficiently shows that the plaintiff's intestate died from uremic poisoning resulting from a fractured pelvis received in an automobile accident.

This information is required to be set out in the certificate of death under the provisions of § 25, Title 22, Code 1940. In pertinent part said section provides: '* * * The medical certificate shall be made and signed by the physician, if any, last in attendance on the deceased, who shall specify the time in attendance, the time he last saw the deceased alive, and the hour of the day at which death occurred. He shall further state the cause of death, so as to show the course of the disease or sequence of causes resulting in the death, giving first the name of the disease causing death (primary cause) and the contributory (secondary) cause, if any, and the duration of each. * * * Causes of death which may be the result of either disease or violence shall be carefully defined; and if from violence, the means of injury shall be stated, and whether (probably) accidental, suicidal or homicidal. * * *'

Section 42, Title 22, Code 1940, provides in part as follows: '* * * Any such copy of the record of a birth or death, when properly certified by the state registrar, shall be prima facie evidence in all courts and places of the facts therein stated.'

We think that the certificate of death, duly certified, when taken in connection with the evidence tending to show the condition of plaintiff's intestate prior to the accident and subsequent thereto, is sufficient to make out a prima facie showing that intestate's death resulted from injuries received in the highway accident which occurred on September 11, 1948. It then became the duty of defendant to overcome or rebut the presumption made by the certificate of death. American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215, and cases cited.

On September 11, 1948, the date on which the accident on which this suit is based occurred, one Jack Dailey and Abram Kizziah were at the home of George Battles, plaintiff's intestate. Battles requested Dailey, who owned an automobile, to drive him to the home of one Jack Martin. Dailey told Battles that he didn't feel like driving, but that they could go in Dailey's car if Kizziah would drive. The three of them left Battles' home, with Kizziah driving the car, Battles riding on the front seat to the right of the driver, and the owner of the car, Jack Dailey, riding on the back seat.

They reached the Tuscaloosa-Birmingham highway which, for present purposes, we will treat as running north and south, and had proceeded in a northly direction approximately a mile and a half on that highway when the accident occurred. Jack Martin, to whose home they were driving, lived west of the highway.

The collision occurred at a point a short distance south of the road into which Kizziah intended to turn and drive in a westerly direction to get to the home of Martin

The defendant, Johnson, at the time of the collision, was proceeding in a southerly direction on the Tuscaloosa-Birmingham highway.

The testimony as to how the accident occurred is in sharp conflict.

The only witness who testified for the plaintiff as to the manner in which the collision occurred was the driver of the automobile, Kizziah. According to his testimony, he had stopped the automobile on the eastern side of the highway and held out his left hand preparatory to making a turn into the road which led to the home of Martin; that a car proceeding in a southerly direction turned from the western side of the highway in front of him and proceeded on down the shoulder on the east side of the highway; that shortly thereafter the car driven by the defendant followed the path of the first car until it reached the point where the car which Kizziah was driving was located, and the right side of Johnson's car hit the right side of the car driven by Kizziah and propelled it across the highway, where it stopped on the western side thereof, with the Johnson car ultimately coming to a stop on the eastern side of the highway. According to Kizziah, the defendant, Johnson, at the time of the collision was traveling at a speed estimated to be between seventy and seventy-five miles an hour. The place where the collision occurred was between 250 and 300 feet below the crest of a hill. The traffic was heavy, the day clear and the road dry.

The defendant, Johnson, testified that he came over the crest of the hill at a speed of approximately fifty miles an hour; that the car driven by Kizziah pulled out from behind a large truck and turned from the eastern side of the highway toward the western side as if to go onto the side road and turned directly in front of him; that he put on his brakes as soon as he saw the car driven by Kizziah begin to turn and that his brakes 'screeched' and skidmarks were left a distance of approximately ninety-two feet. According to Johnson, the right-hand fender of his car hit the center of the right side of the car driven by Kizziah and knocked it over on the western side of the highway and that his car, that is, Johnson's car, finally came to rest some distance south of the point of collision on the estern side of the highway. A picture...