Kemp v. Jackson

Decision Date20 September 1962
Docket Number6 Div. 450
Citation274 Ala. 29,145 So.2d 187
PartiesCharles W. KEMP et al. v. Clint JACKSON, Adm'r.
CourtAlabama Supreme Court

Sadler, Sadler, Sullivan & Herring, Birmingham, for appellants.

Parsons, Wheeler & Rose, Birmingham, for appellee.

COLEMAN, Justice.

This is an appeal by two, of three defendants, from a judgment for plaintiff, in an action for wrongful death of plaintiff's intestate. Verdict and judgment were against all three defendants, to wit, Kemp, Copeland, and Gamble. Kemp and Copeland appealed. Gamble was summoned to appear and unite in the appeal, but he has not done so.

The case went to the jury under Count B, which alleges that Kemp operated, for hire, motor vehicles known as wreckers to bring in disabled automobiles; that plaintiff's intestate, Clint Jackson, verbally contracted with or engaged from Kemp, for $40.00 which was paid to Kemp, a wrecker with a driver to bring intestate's disabled automobile into Birmingham from a place near Cullman; that Kemp, or his employee acting within the line and scope of his employment, requested intestate to ride in the cab of the wrecker from Birmingham to the place where intestate's automobile was, to show the driver of the wrecker where the automobile was and identify it; that intestate did ride in the wrecker from Birmingham to a place near Garden City where the wrecker, while en route, was in collision with another motor vehicle; that the wrecker was driven on said trip by Copeland who was the employee of Kemp; that the latch on the right door of the cab of the wrecker was, at the time intestate engaged the wrecker and at the time of collision, in a defective, dangerous, and unsafe condition; that, on the trip, the wrecker was involved in a collision with an automobile; that the defective latch on the right door of the wrecker failure to hold said door closed, the door came open, and intestate was thrown out of the wrecker through said open door and suffered injuries whereof he died; that Copeland, who was the employee of Kemp and acting within the line and scope of his employment, was negligent in so transporting intestate in the cab of said wrecker with said defective, dangerous, and unsafe latch, knowing the same to be defective, dangerous, and unsafe; that Gamble so negligently operated an automobile at said time and place that it ran into the wrecker, injuring intestate so that he died; that the injury and death of intestate were proximately caused by the concurring negligence of Copeland and Gamble, and that Copeland was the agent of Kemp and was acting within the line and scope of his agency.

Defendants pleaded in short with leave, etc.

We understand that it is not disputed that intestate was driving his automobile toward Birmingham; that the automobile broke down near Cullman; that intestate left the car and went to Birmingham where he engaged a wrecker from Kemp to bring the car to Birmingham; that intestate and his brother got into the wrecker, which had one seat and was driven by Copeland as employee of Kemp, and proceeded toward Cullman; that Copeland was driving the wrecker and seated on the left side, intestate's brother was seated in the middle, and intestate was sitting on the right next to the right door of the wrecker.

It appears without dispute that when the journey began the latch of the right door of the wrecker was defective, and that defendant Copeland had prior knowledge of the defect. He testified as follows:

'A When the door locked, there was a safety lock on it, and you could slam it and it would catch. But on rough roads, the lock would bounce open to the safety, but it wouldn't come clear open.

* * *

* * *

'Q On the day you started up to Cullman to pick up the car the day in question, the latch on that right-hand door was not working; it was out of order, wasn't it?

'A The latch on the door would catch at the safety.

'Q It was out of order, it wasn't working----

'MR. SADLER: Object.

'THE COURT: Overrule.

'MR. SADLER: Except.

'Q And it had been in that condition for some time?

'A Several days.

'Q And you had gone so far as to get a new latch?

'A Yes.

'Q And had the new latch on the premises, but had not put it on, is that right?

'A Yes, sir.'

At some disputed time, at the beginning of or during the journey, Copeland undertook to fasten the right door with a chain. Evidence for appellants tended to show that the door was fastened with the chain before the wrecker left Kemp's garage. Evidence for plaintiff tended to show that the chain was not placed on the door until after the wrecker had proceeded several miles to the highway, and that intestate had no knowledge of a defective latch until that later time.

On the highway, the wrecker met a car driven by defendant Gamble. Evidence tends to show that Gamble drove his car so that it struck the left side of wrecker and knocked the wrecker over on its right side. The wrecker was stopped, or almost stopped, and on the right side or shoulder of the highway at the time of collision. There is no insistence that Copeland was negligent in the manner of driving the wrecker.

Copeland and intestate's brother did not suffer severe injury. Intestate suffered injuries which caused his death a few days later. After the collision, intestate was pinned under the right side of the wrecker. As to intestate's position, one witness testified as follows:

'Q Was he fully or partially out of the wrecker?

'A Partially. He was about halfway under there.

'Q Was he inside or outside of the door?

'A He was sticking about halfway out there and he was sticking between the door and the frame and through the window. I believe he was between the door and the frame, I couldn't be positive.'

Intestate's brother testified that after the wrecker came to rest, intestate was pinned 'down,' and the right door of the wrecker 'was bent all up. It was open.'

Assignment 18.

This assignment recites as follows:

'18. The Circuit Court erred in refusing to charge in its oral charge, at the request of this Appellant before the jury retired, on the issue of assumption of risk of Appellee's intestate, to which refusal Appellant excepted. (Tr. p. 132).'

At page 132 of the transcript, the following appears:

'Are there any exceptions to the Court's Oral Charge? What says counsel for the plaintiff?

'MR. PARSONS: We have no exceptions.

'THE COURT: What says counsel for Kemp and Copeland?

'MR. SADLER: I believe we asked for charges on assumption or (sic) risk. We would like to except to those.

'THE COURT: Well, yes. In my refusing them, you have got that.

'MR. SADLER: I just wanted to be sure I was protected.

'THE COURT: I am sure that in refusing the charge; that is not to the oral charge, that is to some written charges.

'MR. SADLER: Well, just the point that the jury was not charged on that issue.

'THE COURT: No, no, I didn't charge on that issue. No, No. Is there any other----'

Assignment 18 makes no reference to the refusal of any charge requested in writing by appellants. The assignment and the transcript, as quoted above, compel us to conclude that appellants are here complaining of the court's action in refusing to instruct the jury in accordance with a request which appellants made orally and not in writing. It has been held by this court that it will not reverse a judgment of the circuit court for its refusal to give a charge asked, unless it appear that such charge was put in writing as the statute provides. Jacobson v. State, 55 Ala. 151; Green v. State, 66 Ala. 40. The declination of a trial court to instruct the jury in consonance with, or on the subject of, verbal suggestion by counsel presents no matter for review on appeal, even though the suggestion was well founded. Mullins v. Lemley, 205 Ala. 593, 88 So. 831. See also: Brock v. State, 235 Ala. 304, 178 So. 548; Krasner v. Gurley, 248 Ala. 686, 29 So.2d 224; Keel v. Weinman, 266 Ala. 684, 98 So.2d 611; § 273, Title 7, Code 1940. Assignment 18 is without merit.

Assignment 4.

Assignment 4 is that the court erred in refusing to give at appellants' request the following written charge:

'II. I charge you gentlemen of the jury if you are reasonably satisfied from the evidence that the allegedly defective door was known to Clint Jackson or that it should have been known to a reasonably prudent man under like circumstances and that Clint Jackson had an opportunity to elect whether or not to ride in said wrecker and that if he with actual or constructive knowledge of the defective condition and of the forseeable (sic) results of said condition, elected to ride in said vehicle he assumed the risk of any injuries proximately resulting from said defect and that if he did suffer injuries proximately resulting from said defects you cannot return a verdict against Charles W. Kemp, doing business as Kemp's Garage, and Fred Eddie Copeland and in favor of the plaintiff.'

Without considering other possible defects, we are of opinion that Charge II is erroneous because it omits the element of appreciation on the part of the plaintiff's intestate. Although the charge requires the jury to be reasonably satisfied that intestate had knowledge of the defective condition of the door and the foreseeable results thereof, the charge fails to require that the jury be reasonably satisfied that intestate appreciated the danger. This court has said:

'In the case of McGeever v. O'Byrne, 203 Ala. 266, 269, 82 So. 508, the phrase 'assumption of risk' is fully considered, and it is there noted that the expression is sometimes loosely applied to cases where there was no contractual relation between the parties. The rule declared is, that it must be confined to cases where the plaintiff knew and appreciated the danger assumed, and with such knowledge and appreciation voluntarily put himself in the way of it. This is the rule that is followed in this jurisdiction. Louisville & N. R. Co. v. Parker, 223 Ala. 626, 636, 138 So. 231; Morgan Hill Paving Co. v....

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