McLaney v. Turner, 4 Div. 889

CourtSupreme Court of Alabama
Writing for the CourtSTAKELY
Citation104 So.2d 315,267 Ala. 588
PartiesA. D. McLANEY, v. Granville R. TURNER, pro. ami.
Docket Number4 Div. 889
Decision Date19 June 1958

Rushton, Stakely & Johnston, Montgomery, and A. R. Powell, Jr., Andalusia, for appellant.

Frank J. Tipler, Jr., Andalusia, for appellee.

STAKELY, Justice.

Granville R. Turner, by next friend (appellee) brought this action for damages for personal injuries against A. D. McLaney (appellant). The action arose from an intersectional auto-truck collision. The complaint contained a count alleging simple negligence and a count alleging wantonness. The trial of the case resulted in a verdict and judgment for the plaintiff on the count alleging wantonness, in the sum of $50,000. This appeal is from that judgment.

Tendencies of the evidence showed the following. On the morning of November 15, 1955, Granville R. Turner, a minor, twenty years of age, was driving an automobile in a southerly direction in the western lane of Alabama Highway No. 55 between Florala, Alabama, and Andalusia, Alabama, and near the intersection of the Wing-Lockhart Road (Covington County No. 4). It was early in the morning, approximately 6:30 A.M., and due to fog, visibility was very poor. Turner, an enlisted man in the United States Air Force, was en route to Florala to pick up a friend and thence to return to Eglin Field, his place of duty. The defendant, A. D. McLaney, a man of 46 years of age and a Covington County road employee for 27 years, was driving a county owned flat-bed truck in a northerly direction on Alabama Highway No. 55 toward Andalusia. He was engaged in delivering county road hands to their designated place of work. Defendant attempted to make a left-hand turn into Covington County Road No. 4 toward Wing. In so doing he angled across the western lane, designed for southbound traffic, into the path of the oncoming automobile driven by the plaintiff, resulting in a collision between the two vehicles. The point of contact between the two vehicles was the right front side of each vehicle, the major damage occurring when the auto came in contact with the protruding portion of the right front corner of the bed of the truck. The road was straight and flat at the intersection and there were no physical obstructions to hinder vision other than the foggy weather.

The plaintiff's car left skid marks for 60 feet prior to the collision and swerved to the east just before contact with the truck, and after the collision the automobile rolled to a stop on the shoulder of the highway on the eastern side and 75 feet past the point of impact. The defendant did not see the plaintiff approaching due to the fog and the fact that he was looking for his turn-off point, which was difficult to see in the fog. The truck and the auto collided at a point 7 feet west of the center line of the highway and 18 feet south of the center of the intersection. Highway No. 55 is a heavily traveled road and the intersection in question is equally busy. The truck was damaged to the extent of $150. The automobile was damaged to the extent of over $800, the top being entirely 'peeled back' by the bed of the truck. The movement of the truck stopped after it had proceeded on into the Wing Road for 45 feet. The defendant slowed the truck to 5-10 miles per hour before starting his turn and his lights were on.

There was evidence from which the jury could have found that the defendant violated several of the so-called rules of the road in making his turn and there was evidence going to show that the plaintiff while not exceeding the 60 miles per hour speed limit was proceeding at an unsafe speed under the conditions of limited visibility brought about by the fog. The plaintiff was severely and seriously injured.

The appellant has listed 92 assignments of error, 62 of which are referred to in appellant's brief.

Assignments 8, 9, 9A, 11, and 12 do not refer to any ruling of the court, hence, they present nothing for our review. Thompson v. State, Ala., 99 So.2d 198; Mulkin v. McDonough Construction Company of Georgia, 266 Ala. 281, 95 So.2d 921; Clark v. Hudson, 265 Ala. 630, 93 So.2d 138; King v. Jackson, 264 Ala. 339, 87 So.2d 623; Central of Georgia Railway Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290; Baldwin, Alabama Truck Farms v. Strode, 184 Ala. 213, 63 So. 521.

Assignments of error 31 and 32 are insufficient in that they do not point out explicitly the parts of the oral charge alleged to be erroneous. Those assignments say no more than that the court erred in charging the jury on wantonness which is not adequate. Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89. Moreover there was no proper exception interposed to any part of the court's oral charge as to wantonness. The only exceptions to that phase of the oral charge read: 'The defendant excepts to all portions of the court's oral charge wherein the court charged the jury on wantonness * * *. The defendant excepts to all portions of the court's oral charge wherein the court charged the jury on Count 2 of the complaint relating to wantonness.' Those exceptions are too indefinite. Birmingham Railway Light & Power Co. v. Friedman, 187 Ala. 562, 65 So. 939; Conway v. Robinson, 216 Ala. 495, 113 So. 531; Solnick v. Ballard, 218 Ala. 206, 118 So. 381; Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729.

Assignments of error 15 and 18 challenge the refusal of the trial court to give affirmative instructions in favor of the defendant as to Count 2, the wanton count. Those assignments are in proper form but they have been argued in brief of appellant together with assignments 8, 9, 9A, 11, 12, 31 and 32, which, as shown above, are without merit. Some of those assignments of error are, in our opinion, unrelated to assignments 15 and 18, hence, we could refuse to give consideration to 15 and 18. Thompson v. State, supra; Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So.2d 449. However, we feel justified in making the observation that after a careful consideration of the evidence we believe that a question for jury determination was presented under the wanton count. Tendencies of the evidence are to the effect that appellant knew that the road on which the collision occurred was heavily travelled and as shown above visibility was very poor due to fog. Nevertheless the evidence tends to show that appellant began his turn to his left across the traffic lane designed for southbound traffic a number of feet before reaching the center of the intersection. In our opinion the cases hereafter cited fully support the trial court's action in submitting to the jury the question as to whether the defendant's conduct constituted wantonness. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Alabama Power Co. v. Buck, 250 Ala. 618, 35 So.2d 355; Smith v. Lawson, 264 Ala. 389, 88 So.2d 322; Fortson v. Hester, 252 Ala. 143, 39 So.2d 649; McNickle v. Stripling, 259 Ala. 576, 67 So.2d 832; Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516; Buchanan v. Vaughn, 260 Ala. 482, 71 So.2d 56; Roberts v. McCall, 245 Ala. 359, 17 So.2d 159; Crocker v. Lee, 261 Ala. 439, 74 So.2d 429.

Assignments of error 28 and 29 charge error in the refusal of defendant's requested charges 20 and 21 which are affirmative in nature as to Count 1A, the negligence count. We are of the opinion that the defendant's negligence and the plaintiff's contributory negligence were questions which were correctly left for the jury's determination. However, even if there was error in refusing defendant's charges 20 and 21, it was error without injury because as indicated above, the jury found for the plaintiff solely on Count 2, the wanton count. Cargall v. Riley, 209 Ala. 183, 95 So. 821; Bank of Ramer v. Derden, 211 Ala. 666, 101 So. 594; Brown v. Leek, 25 Ala.App. 497, 149 So. 854, certiorari denied 227 Ala. 312, 149 So. 855. See Eady v. Heaton, 224 Ala. 327, 140 So. 408.

By assignment of error No. 30, the appellant, the defendant below, asserts error in the action of the trial court overruling the defendant's exception to the following statement made by the trial court at the beginning of his oral charge: 'The suit is primarily that of Granville R. Turner. He cannot bring suit in his name, but must sue by guardian or next friend under the laws of Alabama, but he receives the protection of the law as a minor in that way.' The trial court's statement just quoted was obviously made for the purpose of explaining to the jury how the minor plaintiff instituted his suit. In our opinion the statement was correct and does not tend to show favor on the part of the trial court toward the plaintiff or prejudice against the defendant. We see no reversible error in the action of the trial court in overruling the exception to that part of his oral charge.

Assignment of error 33 is without merit. Contributory negligence is not a defense to a wanton count and the trial court did not err in so charging the jury.

Assignments of error 34 and 35 do not sufficiently point out the parts of the oral charge alleged to be erroneous. Stowers Furniture Co. v. Brake, supra.

Assignment of error 37 shows no cause for reversal. If there was any error in charging the jury as to the speed limit in this state, the error was cured by the action of the trial court in withdrawing the instruction. Donnell v. Jones, 17 Ala. 689, 52 Am.Dec. 194; Huckabee v. Shepherd, 75 Ala. 342; Alabama Power Co. v. Bruce, 209 Ala. 423, 96 So. 346; Louisville & N. R. Co. v. Bailey, 245 Ala. 178, 16 So.2d 167. See North Carolina Mut. Life Ins. Co. v. Coleman, 32 Ala.App. 287, 26 So.2d 114, certiorari denied 248 Ala. 32, 26 So.2d 120.

Assignment 38 alleges error in the court's oral instruction that, 'As a condition to the recovery by the plaintiff it is not required that he prove every one of those (allegations of injury).' The appellant admits that this instruction is legally correct but argues that when considered with the rest of the court's oral charge, it is indicative...

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