Klein v. Harris

• Decision Date: 10 April 1958
• Docket Number: 6 Div. 201
• Citation: 268 Ala. 540,108 So.2d 425
• Parties: Reuben KLEIN v. Jacob S. HARRIS.
• Court: Alabama Supreme Court

Page 425

108 So.2d 425

268 Ala. 540

Reuben KLEIN v. Jacob S. HARRIS.

6 Div. 201.

Supreme Court of Alabama.

April 10, 1958.

Rehearing Denied Feb. 12, 1959.

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

Cooper, Mitch & Black and Mayer U. Newfield, Birmingham, for appellee.

PER CURIAM.

The appellee as plaintiff recovered a judgment against appellant (defendant) who was driving his own car, in which plaintiff was riding, and which collided with another car driven by a person not involved in this suit.

The case was tried on counts 1 and 2 as amended, Count 1 alleged negligence on the part of defendant in driving his automobile, and count 2 alleged wantonness. Count 1 alleged facts asserting that plaintiff was not a guest of defendant. Section 95, Title 36, Code.

The collision occurred at the intersection of 15th Street and 11th Avenue, South, Birmingham. Plaintiff and defendant were traveling north on 15th Street in defendant's car, while the other car was traveling west on 11th Avenue. The speed at which defendant was driving his car was material.

The judge in his oral charge to the jury, with respect to speed, read the statute defining a 'business district' (Title 36, section 1, pocket part, Code), and a 'residence district' (Title 36, section 1), and the speed limit in those districts which is prescribed in Title 36, sections 3 and 5, Code. There was exception noted to this part of the oral charge. This is the basis of the fifth assignment of error, argued first in appellant's brief.

Appellant contends there is no evidence that the district in question is either a business or residence district as defined in section 1(3) and (34), supra. We think that is correct.

The evidence shows that on the southeast corner of the intersection of 15th Street there is a Pure Oil filling station, but the size of the lot so used is not shown; next to it on the south is an apartment house, and next to that are several small storehouses. Their size and the size of the lots so used is not shown. Across 15th Street, on the west side of the street, there are several old dwelling houses, but their size and the size of the lots belonging to each house is not shown. There are no business houses on the west side of that block of 15th Street. Across 11th Avenue and at the northeast corner of the intersection is a Shell Oil filling station and extending north there are several dwelling houses. On the northwest corner of the intersection there is a drug store and extending northward is a 'Hill' store and next to it is a barber shop. The collision occurred within the area of the intersection. Defendant was traveling north and, therefore, on the east side of the street. But to classify the area as 'residence' or 'business', the space fronting on both sides of 15th Street must be analyzed. Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289. We think it is clear that area does not meet the requirements for either a 'residence' or 'business' district.

It therefore follows that the statute making provision for a speed limit in 'residence' and 'business' districts, respectively, has no direct application to this case. That statute, read to the jury, provides only for a prima facie lawful speed in a business district and a different speed limit in a residence district. It also provides that it shall be prima facie unlawful for any person to exceed those limits. The trial judge did not instruct the jury whether those provisions had application here. And since they do not apply here because no aspect of the evidence shows that this area was either a 'business' or 'residence' district, the general rule has application. It is so stated in section 5, Title 36, Code, which is that any person driving on a highway shall drive at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface, and width of highway and of any other conditions then existing, and shall not drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person. That is the question for the jury to determine and they should be so instructed without reference to the limits in a 'business' or 'residence' district.

As we construe the evidence the speed limit in a 'residence' or a 'business' district had no application here. This district does not appear from the evidence to be of either class. The law as read by the trial judge to the jury as to those districts is abstract. But the court did not tell the jury it was abstract. Reading the whole charge it conveys the impression that the jury could find that the district was either a 'residence' or a 'business' district, and apply the law accordingly.

There is a rule of law that abstract charges asserting a correct legal proposition are not grounds for reversal unless the court is reasonably convinced that when referred to the evidence, they must have misled the jury. Schaungut's Admr. v. Udell, 93 Ala. 302,9 So. 550. But when a charge is merely misleading the duty is on the adverse party to request instructions explanatory thereof. Craig v. Pierson Lumber Co., 169 Ala. 548, 53 So. 803; Gilley v. Denman, 185 Ala. 561, 61 So. 97; Bailey v. Tennessee Coal, Iron & R. Co., 261 Ala. 526, 75 So.2d 117. If the misleading tendency of a given charge might have been cured by requesting an explanatory charge, which was not done, a reversal should not result. Tennessee Coal, Iron & R. Co. v. Williamson, 164 Ala. 54, 51 So. 144; Bailey v. Tennessee Coal, Iron & R. Co., supra.

It is our view that the tendency to mislead the jury by so instructing them in this case could not have been cured by a requested charge offered by defendant. Therefore, the judgment should be reversed for charging the jury as to the speed law applicable to a 'residence' and a 'business' district referred to in assignment of error No. 5.

Assignment of Error No. 11.

This assignment relates to the refusal by the court to give charge No. 3 requested by defendant. That is the affirmative charge as to count 2 of the complaint.

There is some confusion here as to the meaning of the record with reference to the second count of the complaint. The complaint started with two counts, one and two. Count 1 is for negligence, and count 2 is for wantonness, and were filed July 16, 1956. On August 13, 1956, a demurrer was filed to each count separately and severally. Before a ruling on that demurrer there appears a plea in short by consent filed May 8, 1957. Then what is termed an 'amended complaint' was filed, reciting that plaintiff, after leave of the court first had and obtained, amends count 1 and count 2 of his complaint as follows. The record then sets out 'count one' in full as thus amended. This is a duplicate of the original count 1, except that it omits the following words at the end of it, 'but that plaintiff had employed defendant to make repairs on plaintiff's automobile and that at the time of such collision plaintiff and defendant were engaged in a joint enterprise for which defendant was to receive payment'. But the amended count 1 leaves in the complaint the following words at the close: 'Plaintiff avers further that at said time he was not being transported as a guest in said automobile without personal payment therefor'.

The amendment sets out count 2 in full. It is a duplicate of count 2 as originally filed, except that it leaves out the word 'willfully' where it appears in two places in connection with wantonly, thus leaving the count as charging a wanton injury instead of a willful or wanton injury. That amendment was endorsed by the clerk as 'filed in open court May 9, 1957'. It does not state at what hour of that day it was filed.

The record does not show that defendant on that day or any time filed a demurrer or answer to the complaint as amended. The judgment entry in the record is dated May 9, 1957, and begins by a submission on defendant's demurrers (to what is not recited), and in due form overrules them to count 1 and sustains them to count 2, and then declares that issue was joined (it does not state on what it was joined), and that there was a jury and verdict for $6,000 for plaintiff and a personal judgment duly rendered. In the oral charge to the jury it is stated that the cause is being submitted to the jury on the complaint as amended in counts 1 and 2. The trial judge then takes up and analyzes each count--one for negligence and two for wantonness.

It is contended by defendant, appellant, that issue was joined on count 1 only, and that sustaining the demurrer to count 2 eliminated that count from the complaint and, therefore, the affirmative charge for defendant as to count 2 as requested should have been given.

But as stated above the record shows no demurrer to the complaint as amended, or filed after the...