Lindsey v. Barton, 6 Div. 209

• Citation: 70 So.2d 633,260 Ala. 419
• Decision Date: 14 January 1954
• Docket Number: 6 Div. 209
• Parties: LINDSEY et al. v. BARTON
• Court: Supreme Court of Alabama

Page 633

70 So.2d 633

260 Ala. 419

LINDSEY et al. v. BARTON

6 Div. 209.

Supreme Court of Alabama.

Jan. 14, 1954.

Rehearing Denied March 11, 1954.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellants.

Taylor, Higgins, Windham & Perdue, Roy M. Johnson, Jr., Birmingham, for appellee.

SIMPSON, Justice.

On original submission of this case the appeal was dismissed by this court. Thereafter appellants moved to set aside the judgment of dismissal and for leave to perfect the transcript. We granted this motion upon condition and, the condition being complied with, the case was resubmitted on the merits October 27, 1953. We therefore proceed to a consideration of the appeal on its merits.

This is an action for personal injuries and property damage received by appellee in a collision of his automobile with the trucktrailer of appellants. Judgment was for the plaintiff in the amount of $10,000; hence the appeal.

The central question tendered, as we see it, concerns the action of the trial court in refusing to admit evidence proffered by the defendants that while driving his car at the time of the accident the plaintiff did not have a driver's license. Appellants assign and argue this ruling as error to reverse.

Under Title 36, § 59, Code 1940, a driver's license is required of anyone operating a motor vehicle on the highways of this state; § 63 provides for an examination of the driver prior to the issuance of such license and § 69 makes it a misdemeanor to drive a vehicle without a driver's license. The argument is advanced that on the issue of contributory negligence, evidence that the plaintiff, in violation of Title 36, § 59 et seq., did not have a driver's license was admissible. We are aware of the divided authority in other jurisdictions bearing on this question. It is res nova with us.

The appellants contend that violation of a statute is negligence per se in Alabama, Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471, 472, and that since the appellee's driving without a license was in violation of Title 36, § 59 et seq., on an issue of contributory negligence such violation is conclusively negligence and evidence thereof should necessarily be admitted and is proper on the question of the competency of the driver.

Mr. Justice Anderson in the Watts v. Montgomery Traction Co. case, supra, cited 29 Cyc. 438 as authority for the rule that 'the statute * * * violated * * * [in order to be negligence per se] must have been enacted for the benefit of the party who seeks to invoke its violation as distinguished from the public generally or a class to whom the ordinance necessarily applies.' And in 29 Cyc. 438 there appears the following statement: 'It is necessary, however, that the duty imposed be for the benefit of the person injured * * * and where the duty is plainly for the benefit of the public at large the individual acquires no new rights by virtue of its enactment. Whether a liability arising from the breach of a duty prescribed by a statute * * * accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, must depend upon the nature of the duty enjoined and the benefits to be derived from its performance.' (Emphasis added.)

Some statutes have been held to have been passed for the benefit of particular individuals only and not for the benefit of the public. In this situation, the breach of the statute is negligence per se only if the party invoking such violation is within the class sought to be protected by the statute. Louisville & N. R. Co. v. Murphree, 129 Ala. 432, 29 So. 592; Central of Georgia R. v. Sturgis, 149 Ala. 573, 43 So. 96.

It would seem that the statute requiring a driver's license imposes a duty for the benefit of the public at large and the individual defendant, therefore, would acquire no new rights by virtue of its enactment, nor would a violation thereof by the plaintiff, although a criminal offense, inure to the benefit of the defendant so as to be pleaded as contributory negligence against the plaintiff in an action for damages arising from an auto collision between them.

Moreover, there was no evidence in this case nor any offer to show evidence by the appellants-defendants tending to prove a causal relationship between the plaintiff's injuries and the plaintiff's alleged violation of the statute in failing to have a license. This is equally true of the evidence of the refusal upon application to grant the plaintiff a driver's license. By the weight of authority and the better reasoning as we see it, under the facts here presented, evidence that the driver was not licensed as required by statute is inadmissible unless there is some causal relationship between the injuries and the failure to have a license. Upon like reasoning the rejection of the evidence of the refusal upon application to grant the plaintiff a driver's license was proper. See DeVite v. Connecticut Co., 112 Conn. 670, 151 A. 320; Davis v. Gordon, 183 Md. 129, 36 A.2d 699, 156 A.L.R. 1109 (Evidence that defendant's license had been revoked before the accident in question improperly admitted.); Dervin v. Frenier, 91 Vt. 398, 100 A. 760; Lindsay v. Cecchi, 3 Boyce 133, 80 A. 523, 35 L.R.A.,N.S., 699; Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975; Speight v. Simonsen, 115 Or. 618, 239 P. 542, 43 A.L.R. 1149; Mahowald v. Beckrich, 212 Minn. 78, 2 N.W.2d 569; Opple v. Ray, 208 Ind. 540, 195 N.E. 81; Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160; Ross v. Pennsylvania R. Co., 106 N.J.L. 536, 148 A. 741. Prichard v. Collins, 228 Ky. 635, 15 S.W.2d 497 (All evidence with reference to failure of driver to be licensed wholly immaterial.) See also Huddy, 15-16 Ency. of Automobile Law 364, § 193; McElroy, The Law of Evidence in Alabama, § 41, p. 14; Gregory, 'Breach of Criminal Licensing Statutes in Civil Litigation,' 36 Corn.L.Q. 622.

We hold, therefore, that the rejection of evidence that the plaintiff had tried and failed to get a driver's license and that he had never had one was proper.

It is next insisted by appellants that the trial court erred in failing to sustain appellants' objection to the hypothetical question propounded to appellee's medical witness: 'Doctor, assuming the fact that Mr. Barton works in the mine as a coal loader, loading coal with his hands and arms; and from the examinations of his X-rays, and from looking at his arm here in Court some year after the arm was broken; assuming all those facts, Doctor, with your medical experience, and your examination of him, would you say that Mr. Charlie Barton is permanently injured and permanently disabled?' The witness answered, 'Yes, sir.'

Appellants cite the case of Equitable Life Assurance Society of United States v. Davis, 231 Ala. 261, 164 So. 86, 87, as sustaining the position. That suit, however, was one for total and permanent disability benefits under a policy of insurance, by the terms of which the insured in order to recover would have had to be so disabled as to be unable to perform any work for compensation. The sole permanent disability was the loss of an arm and the question which was held to be one seeking illegal testimony was "whether or not, medically speaking, that man's condition is such that he can do manual labor?" In holding the inquiry to be improper, the court pointed out that it was common knowledge that a man accustomed to manual labor was not totally unable to engage in any gainful occupation of that class; that the fact elicited was not a matter for expert opinion and that the inquiry invaded the province of the jury.

More to the point and sustaining the correctness of the ruling in the case at bar is the following statement by the court:

'A physician testifying as an expert to matters within the realm of professional knowledge may give his opinion on one's state of health, and the effect of debility, resulting from injury or disease, upon his ability or inability to engage in work of different kinds. * * *'-- Equitable Life Assurance Society v. Davis, supra, 231 Ala. 264-265, 164 So. 86.

The ruling in the Davis case with reference to the testimony sought is obviously distinguishable from the instant one. We think the trial court properly allowed this testimony under the rules that a qualified physician familiar with the subject may give his opinion as to the permanency of the injury and whether or not in his opinion the plaintiff was permanently disabled. Life & Casualty Ins. Co. v. Bell, 235 Ala. 548, 180 So. 573; National Life Ins. Co. of America v. Hedgecoth, 16 Ala. App. 272, 77 So. 422; State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672.

The competency vel non of that testimony aside, however, substantially the same evidence was previously elicited without objection or motion to exclude, resulting, therefore, anyway that prejudicial error may not be predicated on the later admission of substantially the same testimony. Louisville & N. R. Co. v. Young, 168 Ala. 551, 53 So. 213; New Connellsville Coal & Coke Co. v. Kilgore, 162 Ala. 642, 50 So. 205.

The appellants also contend that they were entitled to the affirmative charge on the wanton count. We repeat the oftstated rule that in considering the propriety of the affirmative charge, the evidence is reviewed most favorably to the plaintiff regardless of any...