King v. Jackson

• Decision Date: 24 May 1956
• Docket Number: 6 Div. 952
• Citation: 87 So.2d 623,264 Ala. 339
• Parties: James E. KING, Jr. v. James E. JACKSON, Jr. (two cases). , 953.
• Court: Alabama Supreme Court

Page 623

87 So.2d 623

264 Ala. 339

James E. KING, Jr. v. James E. JACKSON, Jr. (two cases).

6 Div. 952, 953.

Supreme Court of Alabama.

May 24, 1956.

J. Edmund Odum and John T. Batten, Birmingham, for appellants.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.

Assignments of error referred to in the opinion are as follows:

'1. The verdict of the jury is contrary to the law and the evidence in the case.

'2. The verdict of the jury is not sustained by the great preponderance of the evidence.

'3. The verdict of the jury is contrary to law.

'4. The verdict of the jury is contrary to the facts in the case.

'5. The verdict of the jury and the judgment entered thereon are contrary to the great weight and preponderance of the evidence.'

These charges were given at defendant's request:

'(4) The Court charges the jury that if you are reasonably satisfied from the evidence that plaintiff sustained his alleged injuries and damages as a proximate consequence of an unavoidable accident then in such event you cannot return a verdict in favor of the plaintiff and against the defendant.

'(5) The Court charges the jury that if you are reasonably satisfied from the evidence that the plaintiff sustained his alleged injuries and damages solely as a proximate consequence of an unavoidable accident, then in such event you cannot return a verdict in favor of the plaintiff and against the defendant.'

'(9) The Court charges the jury that the fact that plaintiff was struck by defendant's vehicle, and that fact standing alone, would not authorize you to return a verdict in favor of the plaintiff and against the defendant.'

'(12) The Court charges the jury that if you are reasonably satisfied from the evidence that Mr. Jackson in the exercise of reasonable care on the occasion of the accident in question could not have avoided striking the plaintiff, then you cannot return a verdict in favor of plaintiff and against the defendant.'

LAWSON, Justice.

Around 5 o'clock on the afternoon of June 22, 1954, James E. King, Jr., a little boy four years of age, while crossing a public street in the city of Birmingham came in collision with a motor vehicle driven by James E. Jackson, Jr., and as a consequence 'Jimmy' King received rather serious injuries.

The boy and his father each brought suit against Jackson. The boy sued by his father and next friend claiming damages for personal injuries. The father, James E. King, Sr., claimed damages for loss of services of his minor son and expenses incident to the treatment of his injuries. Both complaints charged the defendant with negligence. In both cases the defendant pleaded the general issue in short by consent in the usual form. The two cases were consolidated and tried together under the statute which authorizes circuit courts in counties of 300,000 or more population to consolidate pending cases of like nature. § 221, Title 7, Code 1940.

The trial resulted in separate verdicts in favor of the defendant. Separate judgments followed the verdicts. Plaintiffs filed their motions for new trials, which were overruled, and they separately appeal to this court. The appeals were consolidated and submitted here on one record.

In brief filed here on behalf of appellants, it is argued that we should reverse the trial court because of its failure to grant new trials on the ground that the verdicts were contrary to the great weight of the evidence and on those grounds setting up newly discovered evidence. But the rulings of the trial court on the motions for new trials are not before us since there is no assignment of error challenging the action of the trial court in overruling and denying those motions. Apparently counsel for appellants assumes that the first five assignments of error, which the reporter has set out in the report of the case, are sufficient to present for our review the trial court's action on the motions for new trial. Those assignments of error are not adequate in that regard. The holdings of this court are to the effect that such assignments of error present nothing for our review since they do not allege error for failure to grant the motions for new trials nor do they allege error by the trial court in any respect. Life & Casualty Ins. Co. of Tenn. v. Womack, 228 Ala. 70, 151 So. 880; Central of Ga. Ry. Co., v. McDaniel, 262 Ala. 227, 78 So.2d 290; Roan v. McCaleb, Ala.Sup., 84 So.2d 358. The opinions in the two cases last cited do not show the assignments of error which we held to be inefficacious because they failed to refer to any ruling of the trial court. However, an examination of the original transcripts reveals that such assignments of error are in all material respects the same as the first five assignments of error in the instant case.

Although there is no assignment of error sufficient to present for our review the rulings of the trial court on the motions for new trials, we feel justified in saying that we have carefully examined all the evidence presented below and that we are clear to the conclusion that if proper assignments of error had been made, under the rule of our cases we would not hold that the trial court erred in overruling and denying the motions for new trials on the grounds which appellants here insist were well taken. Louisville & N. R. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, and cases cited.

The sixth assignment of error reads: 'For that the Court required Plaintiffs-Appellants to proceed with the trial of the cases after a witness, Leon Hollis, subpoened and present in the Court room, left the Court without being discharged according to law and without notifying the Court or the Plaintiffs'-Appellants' Attorney.'

The record before us shows that after the defendant rested his case the following colloquy took place between the...