Karpeles v. City Ice Delivery Co.
Citation | 73 So. 642,198 Ala. 449 |
Decision Date | 13 April 1916 |
Docket Number | 6 Div. 211 |
Parties | KARPELES v. CITY ICE DELIVERY CO. |
Court | Supreme Court of Alabama |
Rehearing Denied Dec. 30, 1916
Appeal from City Court of Birmingham; C.W. Ferguson, Judge.
Action by Max Karpeles as administrator against the City Ice Delivery Company for damages for the death of his intestate in a collision with an automobile. Judgment for defendant and plaintiff appeals. Affirmed.
Where a charge is merely misleading or not sufficiently specific or definite, it is the duty of the complaining party to request a more specific instruction before he can complain thereof on appeal or error.
The facts made by the complaint are that, while Nathan Lowenstein was upon a motorcycle upon a public street in the city of Birmingham, an automobile in charge or control of defendants upon said public street ran into or against the motorcycle so injuring intestate that he died. The first count alleged the negligence in a general way. The second count alleges negligence in that defendant's servant or agent in charge or control of said automobile on the occasion aforesaid, while acting within the line and scope of his authority as such servant or agent, wantonly or intentionally caused the death of plaintiff's intestate by wantonly and intentionally causing or allowing said automobile to run upon or against said vehicle on which intestate was, well knowing that to do so would likely or probably cause great personal injuries to or death of plaintiff's intestate. The pleas were not guilty, and contributory negligence: First, in that said motorcycle was run recklessly on the street, and driven at a greater speed than 16 miles per hour against an ordinance of the city of Birmingham, then in force and effect; second, that the motorcycle was being operated and run by one H.C. Brown, and that plaintiff's intestate was riding on said motorcycle behind said Brown, and knew when he mounted said motorcycle that said Brown was likely to operate said motorcycle across street intersections, and with such knowledge intestate negligently mounted said motorcycle, and negligently rode behind said Brown, as a proximate consequence of which he was injured. Other pleas set up the same thing in varying phraseology. The following charges were given at the request of defendant:
Samuel B. Stern and Harsh, Harsh & Harsh, all of Birmingham, for appellant.
Stokely, Scriver & Dominick and Thach & Underwood, all of Birmingham, for appellee.
Appellee's objections to some expressions in the deposition of the witness Fletcher, made for the first time when the deposition was offered in evidence, were sustained in the court below and these several rulings are assigned for error. The deposition had been taken on oral interrogatories. Attorneys for appellee, defendant below, had refused to take part in the examination, and at the trial objected to the deposition as a whole, on the ground that the commission had been issued in a case not authorized by statute; but we doubt that this objection was tenable, and shall pass it by without comment, our opinion being that the rulings against specific parts of the deposition were free from reversible error--this, so far as concerns the nature of the facts sought to be proved by the several excerpts objected to, the mere conclusions of the witness going to the merits of the very issue to be tried by the jury, on the authority of Alabama City, G. & A. Ry. Co. v. Heald, 178 Ala. 636, 59 So. 461, and cases there cited. The objections to these parts of the depositions were not unduly delayed within the rule of Forehand v. White Sewing Machine Co., 70 So. 147. Their incompetency and illegality, with one exception, were apparent upon their face; and the practice is well settled that such evidence may be excluded at any stage of the trial. Whilden v. M. & P. Nat. Bank, 64 Ala. 1, 38 Am.Rep. 1. The statement of the witness that he was a Confederate veteran was wholly irrelevant and...
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