Mitchell v. Helms

• Decision Date: 29 October 1959
• Docket Number: 7 Div. 435
• Citation: 270 Ala. 8,115 So.2d 664
• Parties: Anthony MITCHELL, d/b/a Mitchell Farm Supply Co. v. Venice HELMS.
• Court: Alabama Supreme Court

Page 664

115 So.2d 664

270 Ala. 8

Anthony MITCHELL, d/b/a Mitchell Farm Supply Co. v. Venice HELMS.

7 Div. 435.

Supreme Court of Alabama.

Oct. 29, 1959.

Clarence Simmons, Jr., Gadsden, for appellant.

Hugh Reed, Jr., Centre, for appellee.

SIMPSON, Justice.

This is an automobile damage suit growing out of a collision of defendant's truck with a truck in which plaintiff was riding as a passenger. The case went to the jury on Count 1, charging simple negligence. From a judgment for the plaintiff, the defendant appeals.

A procedural problem must first be disposed of. Appellee has filed a motion to dismiss the appeal or affirm the judgment on two grounds: (1) That errors were not assigned in the transcript, as required by Revised Rule 2 of this court, Code 1940, Tit. 7 Appendix; and (2) A copy of the order of the judge extending the time for filing the transcript in the case was not filed by the appellant in this court within five days from the date of such order, as provided in the last sentence of Revised Rule 37, as amended. In the circumstances disclosed by the record we are invoking our discretion and overruling the motion. The attorney for appellant has, in our opinion, shown sufficient excuse for his ineptitude in both assigning errors and failing to file the judge's order.

With respect to the assignments of error, he did assign errors on separate sheets of transcript paper, but they were not bound with the record. When the record was called to his attention, he asked permission of this court to write the assignments on the transcript, which we permitted to be done before submission of the cause. We have held that prescriptions of Rule 2 are directory. We have not held appellants to a strict accountability under Rule 2 when the appellee has not been prejudiced by failure to strictly comply. Appellee's attorney was duly served a copy of the assignments of error along with appellant's brief prior to submission, and no prejudice to the appellee is made to appear.

As regards failure of appellant to file the order of the judge's extension within five days, there was likewise no prejudice to the appellee. This portion of Rule 37 is also directory and is for the purpose of informing this court as to the statute of the appeal and whether or not the judge has in fact extended the time. In the instant case, the judge did extend the time within the prescriptive period of the rule and appellee's counsel were duly notified. We, therefore, hold that the motion to dismiss is overruled.

We might observe that, even though we are writing to an affirmance, we have thought it wise to give our construction of the foregoing rules, since they have not been written on before.

On The Merits.

The facts briefly are: Plaintiff's husband, driver of one of the trucks, sought to pass another truck, driven by defenant's agent, on a much traveled highway in Cherokee County. According to the evidence on behalf of the plaintiff, her husband sought to pass the truck of the defendant, but without any warning or signal of any kind, the defendant's truck turned across the highway to go into the driveway of a dairy, thereby causing the driver of the truck in which the plaintiff was riding as a passenger to take to the ditch in order to avoid a collision. When this happened the plaintiff was thrown from the vehicle and was seriously and permanently injured.

One of the main insistences of appellant is that the court erred in allowing Highway Patrolman Reynolds, who investigated the accident, saw the parties and the vehicles involved in the accident, and the manner in which the defendant's truck was loaded, to testify that an arm signal from the...