Liberty Nat. Life Ins. Co. v. Kendrick
| Decision Date | 11 February 1970 |
| Docket Number | 3 Div. 6 |
| Citation | 231 So.2d 750,45 Ala.App. 425 |
| Parties | LIBERTY NATIONAL LIFE INSURANCE COMPANY, a Corporation v. Mackie Lou KENDRICK. |
| Court | Alabama Court of Civil Appeals |
Edwin C. Page, Jr., Evergreen, for appellant.
William D. Melton, Evergreen, for appellee.
The plaintiff-appellee, Mackie Lou Kendrick, filed an action in the Circuit Court of Conecuh County, Alabama, against the defendant-appellant, Liberty National Life Insurance Company, on a policy of insurance seeking benefits in the amount of $2,000.00 as the result of the death of the insured. The particular provision of the policy sued on provided that benefits in the amount of $4,000.00 would be payable if the insured died as a result of injuries sustained 'while riding in an automobile on a public street or highway.' It should be pointed out here that the evidence reflected that $2,000.00 had been paid by the insurer to the appellee on the policy. This amount was not in issue.
The defendant-appellant filed three special pleas and the plea of the general issue.
The appellant states in brief that issue was joined on the question of whether deceased-insured lost his life on a public street or highway.
After trial, there was a jury verdict in favor of plaintiff-appellee for $2,000.00.
The appellant then filed a motion for new trial which contained fifteen grounds. The trial court, after a hearing thereon, denied said motion.
There was an appeal from the final judgment of the court and from the ruling on the motion for new trial.
There were six assignments of error; one having to do with the overruling of the motion for new trial, two of them relating to the refusal of the trial court to grant to the defendant the general affirmative charge, and three of them concerning the refusal by the trial court to admit into evidence a map and photographs of the scene of the accident.
The appellant states in brief that the sole issue presented to the trial court and jury was whether the deceased died from injuries received in an auto accident that occurred on a public or private roadway, i.e., Binion Pool Road. And, he says this was a question of fact to be decided by the court and jury.
The appellant argues this question under assignment of error one, i.e., the overruling of the motion for new trial.
This is the second time this case has been before an appellate court in Alabama. The first time it was appealed, the Supreme Court reversed it for improper argument made to the jury by counsel for plaintiff-appellee. Liberty National Life Ins. Co. v. Kendrick, 282 Ala. 227, 210 So.2d 701.
However, on that first appeal, the Supreme Court also considered the question of whether the accident occurred on a public or private road within the meaning of the same policy now in question.
In its opinion, the Supreme Court delineated a considerable portion of the evidence presented to the trial jury on the main issue. And then said:
'It is the character rather than the quantum of use that controls in determining whether a way is public or private. Valenzuela v. Sellers, 246 Ala. 329, 20 So.2d 469; Still v. Lovelady, 218 Ala. 19, 117 So. 481.
'The placing of stock gaps or gates to control livestock would not keep a road from becoming a public road where it was 'evident that by placing the stock gaps beside the gates, there was no interruption of the use by foot or automotive vehicles.' Huggins v. Turner, 258 Ala. 7, 60 So.2d 909.
'We do not consider Rodgers v. Commercial Casualty Ins. Co., 237 Ala. 301, 186 So. 684, apt authority because it was a 'path' case and not a road used by vehicular traffic.
'Under the evidence and the authorities cited supra, we cannot say the trial court erred in refusing to give the requested affirmative charge for appellant, or that the verdict is opposed to the weight of the evidence as insisted by appellant.'
This court has carefully examined the evidence in the record now before it, and finds that the evidence submitted on the main issue is, for all practical purposes, almost the same as that presented to the Supreme...
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