Lindsey v. Kindt

• Decision Date: 03 April 1930
• Docket Number: 6 Div. 472.
• Citation: 221 Ala. 190,128 So. 139
• Parties: LINDSEY v. KINDT.
• Court: Alabama Supreme Court

128 So. 139

221 Ala. 190

LINDSEY v. KINDT.

6 Div. 472.

Supreme Court of Alabama

April 3, 1930

Rehearing Denied May 15, 1930.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages by Grace Kindt against S.E. Lindsey for personal injuries and property damage. From a judgment for plaintiff defendant appeals.

Affirmed.

Refusing instruction denying award for damages to automobile if owner increased loss by not salvaging automobile held not error.

See also, 128 So. 143.

The following charges were refused to defendant:

"4. If the jury is reasonably satisfied from the evidence that the driver of the Kindt car was negligent in driving the same along the road on the occasion and at the point of the collision, and that this negligence on her part was the sole proximate cause of the collision and resulting injuries your verdict must be in favor of the defendant."

"10. The court charges you that if you believe the evidence in this case you can award the plaintiff, Mrs. Grace Kindt, nothing for any nervous condition."

"3. The court charges you that no damages for permanent injury can be awarded in this case."

"28. If you believe the evidence in this case and are reasonably satisfied therefrom that the plaintiff due to carelessness and inattention to the salvage of the automobile permitted their damages to be increased and the evidence had not shown to your reasonable satisfaction what the actual loss inflicted on the automobile was and what part of the loss was due to inattention and failure to care for the damaged automobile or to salvage it, then in that event you could award the plaintiff nothing for the loss or injury of said automobile."

"5. The Court charges you that if you are reasonably satisfied from the evidence that the defendant's automobile was injured and damaged as a proximate consequence of the negligence of Mrs. Grace Kindt, then you may assess the damages to said automobile as you may be reasonably satisfied of the same from the evidence, against the said Mrs. Grace Kindt under the defendant's plea of recoupment."

The portion of the oral charge of the court made the basis of assignment 11 is as follows:

"Proximate cause in a case is that which is next in order for a responsible causation. That is a part of the thing you have got. That is a part of the law which the court has charged you that the injuries in this case are the proximate result of the negligence of the defendant."

The remarks of counsel for plaintiff in argument to the jury, referred to on the motion for new trial, were as follows:

"Now the gentleman representing the defendant asks the defendant how old he was and proved that he was just a soda dispenser here in the city. Don't you see gentlemen how smart he was. He wanted you gentlemen to think that this boy could not pay any judgment in this case, but I say to you that if you give us a verdict in this case don't you worry about whether we ever collect the money or not from this boy-that is our job." p>Page Lange, Simpson & Brantley and O. Somerville, Jr., all of Birmingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

BOULDIN J.

The action is for personal injuries and property damage from an automobile collision.

The driver of one car sues the driver of the other.

The scene depicted by plaintiff's evidence may be briefly sketched thus: Mrs. Grace Kindt, plaintiff, driving her Overland car en route from Atlanta to Birmingham, on a rainy Sunday afternoon in March, 1927, reached a point on Birmingham-Gadsden highway some miles west of Gadsden. While rounding a curve and keeping well to the right and outside of the curve, suddenly a Chrysler car, driven by defendant, S.E. Lindsey, at a high rate of speed, came meeting plaintiff's car, headed over to the wrong side of the road, and ran into the Overland.

Plaintiff and her husband testify the Chrysler cut out from behind other cars going in the same direction. Witnesses arriving on the scene a few moments later testify the Overland was knocked sidewise into a ditch to the right against an embankment, and the Chrysler had pivoted and come to a stop diagonally across and on the pavement, some 18 feet in width.

Plaintiff and her husband, riding with her, testify that, as the Chrysler approached, she bore to the right until her right wheels were off the pavement. Other evidence of the tracks of the Overland corroborate this view. Other evidence tended to show the Chrysler was running 40 to 50 miles per hour as it approached the point of collision.

Defendant and those occupying the car with him make a case of careful driving at 20 to 25 miles per hour, keeping well to the right, and of plaintiff taking the inside of the curve at a higher rate of speed and so running into the Chrysler. Their view is the position of the cars after the collision was due to the Overland glancing off to the right and turning the Chrysler by the impact.

The first assignment of error, the one first presented and most stressed in brief, challenges the verdict as excessive. No occasion arises for us to consider that question unless and until we have found no other reversible error in the record.

Having considered other questions presented, we depart from our usual course, and treat the questions in the order they are argued in brief.

The complaint has counts for simple negligence and for wanton injury.

We have so far outlined the tendencies of the evidence to indicate the issue of wantonness was clearly one for the jury. In dealing with the amount of the verdict, we cannot say the jury were unauthorized to award punitive damages. In such case their judgment as to the amount so awarded, within reasonable bounds, is not to be disturbed.

There was no direct valuation put on the car at the time of the wreck. Evidence tended to show the Overland 6, with equipment, cost $1,455, had been in use a little over a year, driven about 10,000 miles, and maintained with ordinary care. There was some evidence it was rendered worthless. It was abandoned and left at Gadsden.

Mrs Kindt, testifying two years after the accident, describes her injuries thus: "I had a knock over my right eye-I struck something. I was hit a terrible blow on my chest, left and right side, and my left ankle and both knees were cut. Those injuries were painful. I did the housework before I was hurt. After I was hurt I was unable to do it. *** I was in the hospital a week and while there treated by a physician, they strapped my chest, strapped my ankle and fixed the cut on my knee. Of the week I was in Gadsden I was in bed practically all the time and those injuries pained me very much. *** At the end of a week we took a train for Atlanta. After my arrival home we called our family physician who treated me for the same wounds that Dr. Morgan did in Gadsden for...