Lankford v. Redwing Carriers, Inc.

• Decision Date: 20 January 1977
• Citation: 344 So.2d 515
• Parties: In re Shirley Ann LANKFORD et al. v. REDWING CARRIERS, INC., a corp. Ex parte REDWING CARRIERS, INC., a corporation. Civ. 847.
• Court: Alabama Court of Civil Appeals

Page 515

344 So.2d 515

In re Shirley Ann LANKFORD et al. v. REDWING CARRIERS, INC., a corp. Ex parte REDWING CARRIERS, INC., a corporation.

Civ. 847.

Court of Civil Appeals of Alabama.

Jan. 20, 1977.

Rehearing Denied March 2, 1977.

James D. Harris, Jr., Montgomery, for appellants.

E. L. Brobston, Bessemer, Beavers, May & Debuys, Birmingham, for appellee.

BRADLEY, Judge.

This is a workmen's compensation case.

The action was brought by the widow and minor children of Robert Oliver Lankford against Rewing Carriers, Inc., hereinafter referred to as Redwing. The complaint alleged that Lankford was killed as the result of an accident which occurred while he was driving a truck in the course of his employment and that compensation was due his survivors. Redwing defended by saying that Lankford's death was caused by his own willful breach of Redwing's rule forbidding employees to drink alcoholic beverages while driving, of which Lankford had knowledge, and that Lankford's death was caused by his own intoxication. The case was tried before a jury because Redwing relied on defenses set out in Title 26, Section 270, Code of Alabama 1940. The jury decided those defenses in favor of Lankford's survivors. Redwing's motions for judgment n.o.v. and new trial were overruled and Redwing then filed its petition for writ of certiorari in this court.

It was stipulated that at the time of the accident Robert Oliver Lankford was an employee of Redwing and was driving a truck belonging to Redwing. From the evidence it appeared that Lankford was driving within the line and scope of his employment.

The accident which resulted in Lankford's death involved only Lankford's tractor trailer rig. The accident occurred in the early hours of February 12, 1975 on U.S. Highway 82 in Barbour County, approximately fifteen miles west of Eufaula. According to the state trooper who investigated the accident, it was a foggy night and the road was wet. The vehicle left the roadway on the wrong side of the road, travelled some 360 feet, and came to rest on its left side. Mr. Lankford and another man were found dead in the cab of the truck. Also discovered were two partial six-packs of beer; three cans were missing from one brand and four from the other brand.

A blood sample was taken from Lankford by a local coroner approximately four hours after discovery of the accident and sent to the State Department of Toxicology to be analyzed for alcoholic content. Due to Lankford's heavy loss of blood, the coroner was unable to withdraw the amount of blood customarily used in testing for alcoholic content, and only one test was run. The test revealed a blood alcohol content of 0.17 percent; there was testimony that because the test was not run twice, as is the usual procedure, or with the standard amount of blood, the percentage found could be inaccurate by as much as 0.03 percent.

The issues presented to this court by Redwing focus on the trial court's charge to the jury. Redwing's first contention is that the trial court erred by refusing its requested charge that the jury must find for the defendant employer if the jury believed that Lankford's death was due substantially to his own intoxication, and further that the trial court failed to clarify the law concerning the defense of intoxication in its oral charge to the jury. Redwing's second contention is that the trial court erred in refusing three of Redwing's written requested charges dealing with the presumption of intoxication contained in Title 36, Sections 154 and 155, Code of Alabama 1940. In disposing of these issues we will discuss first Redwing's objection to the trial court's oral charge and then its objections to the refusal to give the requested written charges.

In deciding whether a trial court has failed to charge the jury in accordance with the request of a party, we look first to see if that party has complied with Rule 51, ARCP, which provides in pertinent part as follows:

'No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection.'

Thus, we must determine first whether Redwing objected to the trial court's refusal to give certain requested written charges and its failure to charge on certain aspects of applicable law, and second whether Redwing supported objections made with grounds. We would comment at this point that respondent did not object to a consideration of petitioner's contentions based on petitioner's failure to comply with Rule 51, ARCP. The determination of a compliance with Rule 51 where a party is presenting as error the trial court's failure to orally charge or the refusal to give a requested charge is deemed to be primarily the duty of the reviewing court.

At the close of the oral charge to the jury, the court gave the parties an opportunity to object to the oral charge; no objections were made. Therefore, it is obvious that so far as Redwing's contention that the trial court failed to properly charge on the defense of intoxication is concerned, there has been a complete failure to abide by Rule 51, Supra. Since no objection was made to the oral charge by Redwing, it cannot now question the fialure of the trial court to charge as it desired. Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

Redwing's second contention is that the trial court erred in refusing its requested charge on intoxication as a defense and its requested charges on the presumption supposedly created by Title 36, Sections 154 and 155. Here again we must first decide whether Redwing properly preserved its right to raise as error the trial court's refusal to charge by following the requirements of Rule 51.

The record shows that at the close of evidence, the trial judge held a conference in chambers to rule on requested charges filed by both parties and to discuss the court's oral charge. During this meeting, the tirla judge discussed with the attorneys for both parties the requested charges and told the attorneys which charges he was going to give and which ones he refused. In the process of doing this, the judge also commented on matters that would and would not be included in his oral charge and concluded by saying that each party had an automatic exception to the refused charges.

The trial judge did tell the petitioner's attorneys that they had an exception and could assign grounds for their objections later.

It is clear that under Rule 51, not only must an objection to the trial court's failure or refusal to charge to made, but the objection must be made specifically and must be supported by grounds in order for review to be had in the appellate court. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

The record bears out the failure of petitioner to object to each and every refused charge and to assign grounds therefor as required by Rule 51; however the colloquy between counsel and the court during the time that the court was considering the requested charges and tentatively commenting on the general content of his upcoming oral charge convinces us that the trial court made his reasons for refusing certain requested charges sufficiently clear to counsel for petitioner so as to convince petitioner's counsel that further objection or discussion would be fruitless. Under these circumstances, we consider Rule 51 to have been complied with so as to authorize our review. American National Bank & Trust Co. v. Aetna Insurance Co., 447 F.2d 680 (7th Cir. 1971).

Petitioner contends that the trial court erred in refusing to give the following requested charge:

'I charge you, members of the Jury, that if you believe from the evidence that Mr. Lankford's death was due substantially to his own intoxication, then you must find for the Defendant, Redwing Carries, Inc.'

The court instead charged that if the jury found Mr. Lankford was intoxicated at the time of the accident then it must further determine '. . . whether or not his injury and death was the proximate consequence of that intoxication . . .. If (the intoxication) was the proximate cause of the injury and death, then, the law says he would not be entitled to compensation. If it . . . was not the proximate cause of his injury and death, then, of course, he would be entitled to compensation.'

The petitioner alleges error in that the jury could have inferred from this charge that the intoxication defense is effective only if the intoxication were the sole cause of the accident. Relying on Woosley v. Central Uniform Rental, 463 S.W.2d 345 (Ky.App.1971), petitioner urges that the intoxication defense should be allowed if the intoxication in some way contributes to the occurrence of the accident, which is the rule reflected in petitioner's refused charge.

We are disinclined to adopt the rule urged by petitioner. We think the trial court's charge stated the correct rule in this state, namely that in order for an employer to avail itself of the statutory intoxication defense, it must appear that the injury or death suffered by the employee was proximately caused by the employee's intoxication. We have found no case on point in this state; however, we believe the legislature intended a proximate cause standard.

Tiel 26, Section 253, Code of Alabama 1940 (Recomp.1958) expresses intent that the injury or death suffered by an employee be 'tne natural and proximate cause' of an accident arising from the employment. Our courts have so interpreted the statute. Foster v. Continental Gin Co., 261 Ala. 366, 74 So.2d 474 (1954); Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288 (1938).

Pursuant to Section 253, Supra, Section 270, Title 26, Code of Alabama 1940 (Recomp.1958) (Supp.1973) permits certain...