Kurn v. Counts

• Citation: 247 Ala. 129,22 So.2d 725
• Decision Date: 14 June 1945
• Docket Number: 6 Div. 295.
• Parties: KURN et al. v. COUNTS.
• Court: Supreme Court of Alabama

22 So.2d 725

247 Ala. 129

KURN et al. v. COUNTS.

6 Div. 295.

Supreme Court of Alabama

June 14, 1945

Rehearing Denied July 26, 1945.

Cabaniss & Johnston, Jelks H. Cabaniss, and E. T. Brown, Jr., all of Birmingham, for appellants.

Taylor Higgins, Koenig & Windham and Clifford Emond, all of Birmingham, for appellee.

FOSTER, Justice.

This is an action under the homicide statute (section 123, Title 7 Code of 1940) for negligently or wantonly causing the death of plaintiff's intestate: counts one and two for negligence, three and four for wantonness. The defendants were two trustees of the St. Louis and San Francisco Railway Company, a corporation, and Walter Connell. All the counts allege in different language that defendants were engaged in operating railroad trains as a business; and in counts one three and four that the servants, agents or employees of defendants caused plaintiff's intestate's death; and in count two that defendants negligently caused his death without mentioning the servants and agents. Counts one and two were charged out, and so was Walter Connell on all counts.

We have not undertaken to set out in detail any of those counts. There is no claim of their insufficiency, but that there was a variance in the proof: in that, the proof showed that defendant Connell was not engaged in the business of operating railroad trains, but was the engineer on the train which caused the death of decedent; and inferentially that he had no servants or agents in such operation; but that the trains were operated by the trustees through their servants and agents, of whom Connell was one, and that on account of the variance all the defendants were due the affirmative charge.

It is probably true that the status of the evidence in that respect created a variance. McGhee v. Drisdale, 111 Ala. 597, 20 So. 391; Northern Alabama Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Dean v. E. T. V. & G. Rwy. Co., 98 Ala. 586, 13 So. 489; Hackney v. Perry, 152 Ala. 626, 44 So. 1029; Sloss-Sheffield S. & I. Co. v. Wilkes, 231 Ala. 511, 165 So. 764, 109 A.L.R. 385.

By way of compliance with Rule 34, Circuit Court Practice, Code of 1940, Tit. 7 Appendix, defendant requested several affirmative charges in proper form with reference to the different counts and different defendants separately. At the conclusion of each of them it is stated 'This charge is requested because of a variance.' Appellee insists that such statement does not comply with Rule 34 for two reasons: (1) That the reference to the variance in a requested charge is not sufficient because 'the variance was (not) brought to the attention of said trial court by proper objection to the evidence,' and (2) because the attention of the court with respect to the charge was not sufficiently specific.

As to the first contention we note that Rule 34, supra, requires proper objection to the evidence on that ground. That requirement is illustrated in the case of Cassady v. Williams, 234 Ala. 299, 174 So. 485, when the instrument offered was different from that described in the complaint. Also in United States Health & Accident Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Reliance Life Ins. Co. v. Russell, 208 Ala. 559(13), 94 So. 748; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897.

The variance here is that the proof showed that the defendants were not all engaged in operating railroad trains as a business, and that no servant of each or all the defendants did the act, in that no servant of Connell was shown to be involved, but if Connell is liable it is by reason of his own act, not that of a servant. Plaintiff propounded interrogatories to the trustee defendants, and introduced their answers as evidence. In that manner plaintiff proved that the trustees were operating the trains and that Walter Connell was an engineer for them. Also plaintiff introduced the answers of Connell to interrogatories propounded to him. One was to state by whom he was employed, answer, by the trustees; then, in what business he was engaged, and his answer a railroad engineer; then to state his connection with the defendant trustees, and he answered that he was employed by them as an engineer; also that he was the engineer on the train involved in the collision with an automobile in which plaintiff's intestate was riding when he was killed. He was then called upon to state who had charge of the operation of the railroad train, and he answered that according to his information it was the named trustees, and that his connection with it was that of a locomotive engineer. He was then called on to give details as to the location and incidents of the accident.

In the case of Carter v. Shugarman, 197 Ala. 577, 73 So. 119, the variance was of a similar sort, the Court held that defendant did not properly take advantage of the variance by the request for the general charge for two reasons, one that he had not made objection to the evidence on that ground, and the other was that in requesting the charge a mere statement to the court that there was a variance is not sufficient.

It seems to us that the requirement of the rule that objection be made at trial is where there is a certain piece of evidence or bit of testimony which shows the variance and is not admissible for other necessary purposes. When that is not the situation, and the evidence which shows the variance consists of a summation of it, or inferences drawn from it in the course of the trial, and it is all admissible for other purposes, and therefore not subject to objection and exclusion on account of the variance, the rule should be held to be complied with if the general charge is requested, and the attention of the court is directed to the specific nature of the variance and what makes it so. But a general statement to the court that it is requested on account of a variance is not specific enough. Carter v. Shugarman, supra. It follows that the variance was not here properly presented to the trial judge under Rule 34, supra.

Assignment No. 4.

This relates to a motion by defendants to exclude the testimony of Flavor Pritchett as to the speed of the train involved in the accident because he testified that he neither saw nor heard the train, and hence could not form an estimate as to its speed. The witness testified among other things that he did not see the train, and knew nothing of it until it hit the man; that it was flying, running forty or fifty miles an hour. While the value of his testimony was perhaps weakened on cross-examination, it does not follow that his estimate of the speed was illegal, because he never saw nor heard the train until it hit the man. He saw how far it traveled after doing so, and how fast it was moving immediately after the impact.

Assignment No. 5.

This relates to the testimony of Ulysses Cobb also as to the speed of the train. His testimony in legal aspect is quite similar to that of Flavor Pritchett, and is subject to the same comment.

Assignment No. 15.

This is based on the refusal of a motion for a new trial. In arguing this assignment in brief, counsel for appellants state that the chief emphasis is placed on the ground that the verdict of the jury was contrary to the great preponderance of the evidence. Section 276, Title 7, Code.

Plaintiff's intestate was traveling north on Walker Street, in Birmingham, in a car driven by him. Going north is an upgrade to where the railroads cross it. There were three railroad tracks which cross it, west to east. The northern track was that of Birmingham Electric Company, the middle track was that of Birmingham Southern R. R. Company, and the southern track that of the St. Louis and San Francisco Rwy. Company operated by defendant trustee. There was a house at the southwest corner of the intersection of Walker Street and the railroad right of way. At the time in question, shortly after one o'clock P. M., on a clear day, a train operated under the direction of the trustees for the Frisco Railway was proceeding on its track in an easterly direction toward the city. It was a passenger train consisting of an engine and eleven coaches. As the track extended to the crossing from the west, as the train was traveling, there was a sharp curve to the left, so that the engineer approaching the crossing from the west could not see it until he was fifteen or twenty feet away, though the fireman could see it for a greater...