Kinard v. Carter

• Citation: 518 So.2d 1248
• Parties: Olis Ralph KINARD and Valarie Burgett Kinard v. Jack CARTER. 85-1496.
• Decision Date: 18 December 1987
• Court: Supreme Court of Alabama

Page 1248

518 So.2d 1248

Olis Ralph KINARD and Valarie Burgett Kinard v. Jack CARTER.

85-1496.

Supreme Court of Alabama.

Dec. 18, 1987.

Banks T. Smith, Dothan, for appellants.

Jeffrey W. Smith of Miller & Beers, Montgomery, for appellee.

BEATTY, Justice.

Appeal by plaintiffs from the denial of their motion for a new trial following a verdict and judgment for the defendant in plaintiffs' action based upon negligence and wanton conduct. We affirm.

The action arose out of a motor vehicle accident that occurred on Interstate 65 north of Montgomery. Olis Ralph Kinard and his wife, Valarie, who was driving, were travelling in the northbound lane, while Jack Carter was driving in the southbound lane at approximately 55 m.p.h. Carter saw what appeared to be a "recap" on the highway about 60 to 100 feet directly in front of his automobile. His car struck the object and blew a tire. The automobile travelled off the shoulder of the road, across the median, and into the northbound lane, where it struck the Kinard vehicle.

The plaintiffs sued the defendant, alleging negligence and wantonness, and claimed damages for personal injury, property damage, and loss of consortium. The defendant pleaded contributory negligence and unavoidable accident. The plaintiffs withdrew the wantonness and loss of consortium claims, and the case was tried to a jury only upon the negligence claim.

On their motion for a new trial, plaintiffs contended that the trial court erred in giving three jury charges requested by defendant, and they also maintained that two instances of jury misconduct necessitated a new trial. Their motion for a new trial was denied, hence this appeal.

I.

Did the trial court err in instructing the jury on the imputation of any negligence of Valarie Kinard to Olis Ralph Kinard?

It should be recalled that Valarie Kinard was driving the Kinard vehicle and that Olis Kinard was a passenger in it. The Kinards were en route to Birmingham to see their granddaughter, and the timing of the trip was dictated by Mr. Kinard's recent surgery. According to Mrs. Kinard, she was driving because of her husband's recent surgery. In Count Three of the complaint, plaintiff Olis Ralph Kinard claimed damages for the damage to the vehicle. In his testimony, he referred to this vehicle as "my station wagon" and as "our automobile." Mrs. Kinard herself testified that upon her husband's warning of the other vehicle, she slowed down the vehicle she was driving.

In Downes v. Norrell, 261 Ala. 430, 434, 74 So.2d 593 (1954), this Court commented upon the factual situation justifying the imputation of negligence:

"The evidence stated may not show the technical relation of master and servant or principal and agent, but even when such relation is not shown, there is sometimes imputed to one the negligence of the driver of an automobile so as to hold the former liable for the damage to a third person caused by such negligence. That principle has the following qualities, as stated in Woodson v. Hare, 244 Ala. 301, 13 So.2d 172: the person charged must be (1) an occupant of the car; (2) must be the owner or a bailee of it; (3) must have the right to control its operation by the driver; and (4) the car must at the time be operated for his benefit, or the mutual benefit of them both. Right to control the operation of the car by the one sought to be charged is essential.... That means that there is a community of interest in the object or purpose of the undertaking and an equal right to direct and govern the movements and conduct of each other, whether or not use is being made of that right.... To be so, ' "there must be such a community of interest as to make each the agent of the other and the trip itself must be an integral part of the ventur." ' " (Emphasis in Downes.) (Citations omitted.)

From the facts, it is clear that at the time of the accident, Mr. Kinard met the test of Downes v. Norrell, supra. Indeed, there was evidence that (1) he was an occupant of the car; (2) he was the owner; (3) he had the right to control its operation because of their joint enterprise and community of interest in making the trip; and (4) the car was being operated for their mutual benefit. Thus, it was not error for the trial court to so instruct the jury.

II.

Did the trial court err in instructing the jury on the doctrine of sudden emergency?

A trial court's statement of the principle of "sudden emergency" was quoted with approval in Williams v. Worthington, 386 So.2d 408, 409 (Ala.1980):

"[I]f a person, a motorist, without fault of his own is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation. And the fact--if it be a fact--that he does not choose the best or safest way of escaping peril or preventing injury, it's not necessarily negligence. But, the standard of care required in an emergency situation is that care which a reasonable and prudent motorist would have exercised under the same or similar circumstances."

That statement of the principle is almost identical to the charge given by the trial court here. The facts in this case justified the charge. The defendant, Carter, testified that he saw a "gadget ... like a recap" lying in the road and that he was "so close on it" that there was no way he could dodge the object. He determined to go straight over the object, because, he said, attempting to go around it would have "killed all my family and myself, too." After his car hit the object, he did not have brakes or power steering and had no control over the car. His car had new tires but, after the accident, two of these were found to have been severely damaged. Even though there was evidence that the weather was clear and that the roadway view was clear, nevertheless, taking the evidence as a whole, a jury question was presented as to whether a sudden emergency existed and, if so, whether under the circumstances the defendant met the standard of prudence required. Williams, supra.

III.

Did the trial court err by instructing the jury on the principle of mechanical defect or failure?

The trial court charged:

"It's the duty of the owner or the operator of the motor vehicle to see that it's reasonably safe--the vehicle--before operating it on a public highway. And where, however, the owner or operator of the vehicle, without knowledge of a defective condition, known or reasonably aforeseeable [sic], experiences a mechanical failure, and such mechanical failure is the sole proximate cause of the injury, or damage, the owner or operator cannot be held liable."

The evidence is without dispute that defendant's car was equipped with four new tires,...