Lemons v. Allison
| Decision Date | 29 November 1956 |
| Docket Number | 8 Div. 880 |
| Parties | Dewey L. LEMONS, as Administrator, v. Billy ALLISON. |
| Court | Alabama Supreme Court |
H. T. Foster and John B. Tally, Scottsboro, for appellant.
Scott, Dawson & McGinty, Scottsboro, for appellee.
This is a suit under the homicide statute, § 123, Title 7, Code 1940, by appellant, as administrator of the estate of B. L. Lemons, deceased, against appellee to recover damages for the alleged wrongful death of the intestate.
The case was submitted to the jury on Counts 1 and 1A charging negligence, Counts 2 and 2B, charging willful or wanton conduct, and on the plea of the general issue and on four special pleas of contributory negligence. There was jury verdict for the defendant, Billy Allison. The judgment was in accord with the verdict. Plaintiff's motion for new trial was overruled and he has appealed to this court.
A. J. Knight, the Sheriff of Jackson County, who investigated the accident, was called as a witness on behalf of the plaintiff. He testified that a comparatively short time after the accident while talking with the defendant, Billy Allison, he detected an odor of intoxicating liquor on the defendant's breath; that thirty or forty minutes after the accident, while he was talking with the defendant in the sheriff's office, the defendant admitted that he had drunk some wine on the morning of the accident and the defendant became nauseated in the office during the course of the interrogation. During the direct examination of Sheriff Knight, counsel for the plaintiff asked the following question of the witness: 'Did he say anything about the temperature of the room, or anything of that sort?' Counsel for the defendant objected on the ground that 'it is irrelevant, incompetent and immaterial, and throws no light on any of the issues involved in this case.' Counsel for the plaintiff replied: 'It is a question of his intoxication, Your Honor.' The trial court sustained the objection interposed by counsel for the defendant and exception on behalf of the plaintiff was duly noted. It is insisted here that this ruling of the court made the basis of Assignment of Error 9 constitutes reversible error. We cannot agree. Even if it be assumed that a statement made by the defendant concerning the temperature of the sheriff's office at a time forty minutes after the accident occurred would be evidence of his intoxication at the time of the accident, we feel that the evidence plainly shows that the defendant had been drinking prior to the accident and that we cannot say after an examination of the entire cause that it appears that the ruling here complained of, if erroneous, probably injuriously affected a substantial right of the plaintiff. Supreme Court Rule 45, Code 1940, Tit. 7, Appendix. Moreover, the question to which the objection was sustained is a leading question and while the defendant did not object on that ground, we would not put the trial court in error in sustaining the objection.
In his seventh assignment of error the appellant charges that the trial court erred in giving at the request of the defendant written Charge 54, which reads:
'I charge you, gentlemen of the jury, that under the law of the State of Alabama the burden of proof is on the plaintiff in this case to show by unbroken sequence of cause and effect that the alleged negligence or the alleged wanton conduct of the defendant Billy Allison was the proximate cause of the accident complained of, and I further charge you, gentlemen of the jury, that where the evidence leaves it uncertain as to whether the cause of the accident was something for which the defendant Billy Allison was responsible or something for which he was not responsible, then there is a failure of proof, and unless each...
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American Pamcor, Inc. v. Evans, 6 Div. 863
...in the case. It is fundamental that subsequent negligence may be proved under a count charging simple negligence. Lemons v. Allison, 265 Ala. 347, 91 So.2d 236 (1956). Appellants' Assignment of Error 7 claims that the trial court erred in refusing to admit into evidence a statement made by ......
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Campbell v. Laningham
...was highly leading and suggestive, and we will not put the trial court in error for sustaining the objection thereto. Lemons v. Allison, 265 Ala. 347, 91 So.2d 236. The jury being present, and the witness answering before objection, there could be no harmful error in sustaining the objectio......
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Smith v. Dillard
...objectionable question even though a proper objection was not stated. Houston v. Town of Waverly, 225 Ala. 98, 142 So. 80; Lemons v. Allison,265 Ala. 347, 91 So.2d 236. The question to which objection was made was clearly repetitious, and in its form was leading and Where the question to wh......
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Owen v. McDonald
...basis of recovery under a count charging simple negligence. Shepherd v. Johnson, 268 Ala. 69, 104 So.2d 755 (1958); Lemons v. Allison, 265 Ala. 347, 91 So.2d 236 (1956). However there must be some evidence requiring an instruction on subsequent negligence. In Scotch Lumber Company v. Baugh,......