Lassetter v. King

• Decision Date: 31 July 1947
• Docket Number: 6 Div. 613.
• Parties: LASSETTER v. KING.
• Court: Alabama Supreme Court

31 So.2d 588

249 Ala. 422

LASSETTER v. KING.

6 Div. 613.

Supreme Court of Alabama

July 31, 1947

London & Yancey and Chas. W. Greer, all of Birmingham, for petitioner.

Taylor, Higgins, Koenig & Windham, of Birmingham, opposed.

GARDNER Chief Justice.

The Court of Appeals has rested its affirmance of the judgment in this cause upon action of the court in giving charge number 15, which is set out in the opinion of that court. That is the only question determined by the Court of Appeals and the only question here presented for our consideration.

Counsel for appellant insists the charge was merely misleading and that the action of the court in giving the charge did not justify a reversal, and hence would not justify the trial court in granting plaintiff's motion for a new trial. It is to be observed that this charge restates practically in full the criminal statute regarding reckless driving, with the details of minimum and maximum punishment to be imposed including the prohibition against further driving for at least six months. The opinion of the Court of Appeals discloses there was evidence tending to establish a violation of this criminal statute and of consequence the charge was not abstract. True in numerous cases the holding of this court has been that charges in actions of this character which make use of criminal terminology in dealing with the question of recoverable damages are misleading and properly refused. Many of these cases are to be found noted in the recent case of Alabama Great Southern R. Co. v Swain, 248 Ala. 535, 28 So.2d 714. But counsel insists that such charges having only a tendency to mislead, if given by the court, called for the opposing party to request an explanatory charge, and in the absence of such request reversible error is not made to appear.

The numerous authorities found cited in 18 Ala.Digest, page 863 sustain the view that a charge which has merely a tendency to mislead the jury does not, if given, present error to reverse. Illustrative is Mobile Light & R. Co. v Nicholas, 232 Ala. 213, 167 So. 298, to which may be added numerous others. But there are cases in which the court finds that a charge must necessarily have misled the jury and not only has a tendency to mislead, in which event the giving of such instruction will constitute error to reverse. The rule was stated in one of our early decisions (Kenan v Holloway, 16 Ala. 53, 50 Am.Dec. 162) where the court observed: 'If the tendency merely of the charge had been to mislead, the defendant should have asked additional and explanatory instructions; but where it will necessarily mislead, and actually does, it is a fatal error.' See also Partridge v. Forsyth, 29 Ala. 200.

It is to be noted that in the cases illustrated by Alabama Great Southern R. Co. v. Swain, supra, and those therein cited, the objectionable feature of the charge was a reference to criminal terminology in very general terms, and the court, as a general rule, was dealing with the question of justification of the trial court in refusing such charges. In none of the cases to which our attention has been called has a charge such as given charge 15 in the instant case been considered. The opinion of the Court of Appeals is to the effect that an explanatory charge requested by the opposing party as to...