Maddox v. Ennis, 4 Div. 127

• Decision Date: 29 November 1962
• Docket Number: 4 Div. 127
• Citation: 147 So.2d 788,274 Ala. 229
• Court: Alabama Supreme Court
• Parties: William Leon MADDOX v. Milford ENNIS.

Page 788

147 So.2d 788

274 Ala. 229

William Leon MADDOX v. Milford ENNIS.

4 Div. 127.

Supreme Court of Alabama.

Nov. 29, 1962.

Rowe & Lane, Enterprise, G. A. Lindsey, Elba, for appellant.

Oliver W. Brantley, Troy, for appellee.

MERRILL, Justice.

This is an appeal from a judgment for defendant in an automobile damage suit.

The accident occurred on a street in Elba at the noon hour. Four cars were proceeding easterly in the right lane of traffic at ten or fifteen miles per hour. Car No. 1, driven by Mrs. Johnson, stopped for pedestrians using a crosswalk. Car No. 2, driven by Hanchey, stopped behind Car No. 1, and Car No. 3, driven by defendant-appellee, stopped behind Car No. 2. Car No. 4, in which plaintiff-appellant was riding as a passenger, was driven by plaintiff's brother-in-law Devane. Car No. 4 struck the rear of Car No. 3 and propelled it into the rear of Car No. 2. In the collision, plaintiff's head struck the windshield and he received other injuries.

Cars 1, 2 and 4 were insured by State Farm Mutual Automobile Insurance Company. Plaintiff sued the drivers of all four automobiles and State Farm retained separate counsel for each of its three policy holders. Prior to the trial, State Farm paid plaintiff $9,250 for a pro tanto settlement and release of the insured Mrs. Johnson, Hanchey and Devane. The complaint was amended to eliminate them as parties, leaving appellee as the sole defendant. The verdict and judgment were for the defendant, the motion for a new trial was overruled, and plaintiff appealed.

Appellant argues that the court erred in giving the requested affirmative charges that the plaintiff could not recover on his wanton count. We have carefully reviewed the evidence and there was no error in the court's action in taking the wanton count from the jury's consideration. The evidence of the witness Edmundson, relied upon by appellant, was not sufficient to make a jury question as to wantonness.

Appellant also argues that the trial court erred in charging the jury that there could be no recovery for any claimed ulcerated condition of his stomach. The automobile accident occurred in February, 1958; in May, 1960, he was examined and found to have developed an ulcer in his stomach.

There was no error in the ruling of the trial court because, first, no claim was made in the complaint for the ulcerated stomach, and there was no proof of any causal connection between appellee's alleged negligence in 1958 and the ulcers in 1960. The law is stated in Southworth v. Shea, 131 Ala. 419, 30 So. 774:

'* * * Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can, with equal probability, be attributed to some other cause. Such a condition is equivalent to an absence of evidence as to the true cause, and, when seen clearly to exist, imposes on the court the duty of determining, as a matter of law, against any right of recovery dependent upon the establishment of causal connection between the injury and its alleged cause. * * *'

We come now to the question which gave the trial court considerable concern on the motion for a new trial--the admissibility of certain portions of pleas of contributory negligence filed by the witness Devane when he had been one of the defendants to the suit.

As already noted, Devane was the driver of Car No. 4 in which appellant was riding, and appellant sued Devane along with the drivers of Cars 1, 2 and 3. The late Claude Fleming was employed by State Farm to represent Devane and he filed pleas charging appellant with contributory negligence. After State Farm had paid for a pro tanto release and Mrs. Johnson, Hanchey and Devane had been eliminated as defendants, Devane was called as a witness for appellant.

His testimony on direct examination placed most of the blame on appellee and was very favorable to appellant. On cross examination, portions of Devane's Pleas A and B were admitted in evidence over stated objection of appellant. The trial court stated in his opinion on motion for new trial: 'It is now conceded by the Court that at the time the portions of Plea A and Plea B were received in evidence that it was error and they should not have been admitted, for the reason that it was not shown that they fit the above rules.'

The 'above rules' come from the case of Cole v. Louisville & Nashville Railroad Company, 267 Ala. 196, 100 So.2d 684, where McElroy's 'Law of Evidence' was quoted as follows:

"As a general proposition, pleadings that have been filed in behalf of a party in another cause or in the...