McClinton v. McClinton

• Decision Date: 20 November 1952
• Docket Number: 1 Div. 424
• Citation: 258 Ala. 542,63 So.2d 594
• Parties: McCLINTON v. McCLINTON.
• Court: Alabama Supreme Court

Page 594

63 So.2d 594

258 Ala. 542

McCLINTON v. McCLINTON.

1 Div. 424.

Supreme Court of Alabama.

Nov. 20, 1952.

Rehearing Denied March 19, 1953.

Lyons, Thomas & Pipes, Mobile, and Adams & Gillmore, Grove Hill, for appellant.

Scott & Porter, Chatom, and Paul S. Jones, Grove Hill, for appellee.

LIVINGSTON, Chief Justice.

This is an appeal from a judgment for plaintiff below for the sum of $6,750.

The defendant below, appellant here, offered no evidence on the trial of the cause and the issues were presented to the jury on the plaintiff's evidence alone.

The appellant challenged the sufficiency of the various counts of the complaint; requested the general affirmative charge, and other charges, and excepted to certain portions of the court's oral charge.

We deem it unnecessary to pass upon all the assignment of errors, as we are of the opinion that the court erred in submitting the case to the jury. That is, the defendant was due the general affirmative charge as to all counts of the complaint. The rule is, of course, that before giving the general charge for defendant, the court must view the evidence in its most favorable light towards plaintiff's cause of action. We, therefore, summarize the evidence pertinent to the question for decision.

The undisputed evidence discloses that appellant and appellee, mother and son respectively, occupied adjoining houses in Jackson, Alabama. Appellant purchased a secondhand Ford automobile sometime in February, 1948. On March 17, 1948, appellant requested another one of her sons, Benny Ray McClinton, to drive her and her husband to the moving picture theater. The son did so, using his mother's car, but kept the car for his own use during the time his parents were in the theater. He returned to pick them up and drive them home. Upon arriving at his mother's home, Benny Ray was given permission by his mother to use the car for a short while to carry a friend home, but was told by her to park the car in appellee's garage when he returned. Benny Ray did park the car in appellee's garage upon his return about 10:00 or 10:30 o'clock. Appellee's house was a two-story garage apartment, the bottom story of which was a garage and storeroom, with living quarters on the second floor. Approximately two hours after the car was left in the garage, fire was discovered in the car, which fire spread to the building, completely destroying it, together with all its furnishings. The electrical system in the automobile had given some trouble, but the car had been repaired about a week prior to the night it burned. There was no evidence of a defective condition in the car--electrical or otherwise--after the repairs were made and prior to Benny Ray's discovery when he carried his friend home on the night the car burned. Appellee denied granting his mother permission to use his garage, but testified that the car had been parked there on at least two occasions previously and he had not complained to his mother about it. The evidence is clear to the effect that the fire originated in the automobile, but the only proof relied upon by appellee to establish the original cause of the fire is the testimony of his brother, Benny Ray McClinton, and an electrician by the name of Jim Lawlis. Benny Ray testified, in substance, as follows:

'I am a brother of the plaintiff, Gaines McClinton. I was living with my mother on March 17, 1948; her home is right next to the garage apartment of Gaines, which burned. When I got there, the house was not on fire, but the automobile was burning and it was parked in the garage in the lower part of my brother's apartment, under his living quarters. The apartment caught fire from the automobile. I placed this car in the garage; it was my mother's car and I parked it in this garage between 10:00 and 10:30 o'clock on the night of the fire. My mother had told me to park the car in this garage. I had operated this car on previous occasions. The ignition system or the electrical wiring in the car had given trouble, and the lights had gone out on it several times. The dimmer switch would not work at times. You would go to dim the lights and the lights would go out on you and you could turn on the lights and they would go back on. The dash board lights would come on and go out. I don't know what caused that. As far as I know the wires on the dash board were properly connected. The dash board panel was loose. I think there was a space in there. It would rattle where the speedometer was. To get in this garage, I had to come from behind the house across what used to be a corn field; I drove across this corn field back there and it was rough for about 250 or 300 yards. We had never had any trouble with the horn on this car.'

On cross-examination, this witness, Benny Ray McClinton, testified substantially as follows:

'I took Mother and Daddy to the show that night around 7:00 or 7:15 o'clock; while they were in the show I went up to a party at the school house and stayed there until I figured the show was over and I went back to the show to take them home. That would have been about 9:15 that I went back to pick them up. Merrida Coxwell was with me when I went back to take Mother and Daddy home. I took them home immediately from the picture show; Mother asked what time I would be in and I told her in 30 minutes or an hour. She did not ask where I was going. After we left Mother and Father at home, Merrida Coxwell and I went either to Tiny Hoven's place or to the Night Spot on the highway to get a cup of coffee. After that I took Coxwell home and then I returned home in the car; I drove the car home and put it in the garage. My mother had told me to put the car in the garage on account of the bad weather. I smoke cigarettes and I had been smoking that night.

'Q. Did you by any chance leave a lighted cigarette on the seat of that car? A. Not to my knowledge.

'Of course, I would not do that intentionally. I had been smoking that night. Coxwell does not smoke regularly, but I do. I did not...