Mobile & O.R. Co. v. Watson

• Decision Date: 09 October 1930
• Docket Number: 6 Div. 634.
• Court: Alabama Supreme Court
• Parties: MOBILE & O. R. CO. v. WATSON.

130 So. 199

221 Ala. 585

MOBILE & O. R. CO. v. WATSON.

6 Div. 634.

Supreme Court of Alabama

October 9, 1930

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for damages for personal injuries by Tom Watson against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded as to motion for new trial.

Foster Rice & Foster, of Tuscaloosa, for appellant.

W. A Denson, of Birmingham, for appellee.

FOSTER J.

It has been often repeated by this court that, in a complaint for personal injuries, it is not necessary to describe in detail all the characteristics and consequences of the injuries with extreme particularity. Mobile L. & R. Co. v Therrell, 205 Ala. 553, 88 So. 677; Atlantic C. L. R. Co. v. Watson, 215 Ala. 254, 110 So. 316; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389.

The allegations of the complaint as to lost time are not unlike such allegations usually made under those circumstances, Gray v. Cooper, 216 Ala. 684, 114 So. 139, and lost time is recoverable in this nature of action. Southern Ry. Co. v. Peters, 194 Ala. 94, 69 So. 611. Tested by the rule of those cases, we conclude that the complaint is not subject to demurrer on account of insufficiency in those respects.

We are also committed to the rule that when the court sustains a general objection to a question, the ruling will be affirmed on appeal, if the question was subject to any ground which could have been properly assigned. Feore v. Trammel, 213 Ala. 293, 104 So. 808; Louisville & N. R. R. Co. v. Fleming, 194 Ala. 51, 69 So. 125, 129.

The ruling of the court on the objection to the question to Dr. Moody, "if Tom wasn't faking his injuries," may be sustained upon the ground that it was a leading question propounded by defendant to his own witness, if the question was otherwise free from objection, or if the exclusion of a favorable answer were conducive to prejudicial effect.

The rule has long prevailed in Alabama that, when there are shown figures used by a jury in its deliberations from which a fair inference may be drawn that the verdict was a quotient, the court will so hold, and that it was the result of a previous agreement unless the contrary is shown. Southern Ry. Co. v. Williams, 113 Ala. 620, 21 So. 328; Birmingham R., L. & P. Co. v. Clemons, 142 Ala. 160, 37 So. 925; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53; Alabama City, G. & A. Ry. Co. v. Lee, 200 Ala. 550, 76 So. 908; International Agr. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L. R. A. (N. S.) 415.

Also that evidence of jurors is admissible to sustain their verdict, George's Restaurant v. Dukes, supra; New Morgan County B. & L. Ass'n v. Plemmons, 210 Ala. 286, 98 So. 12; Birmingham, R. L. & P. Co. v. Clemons, supra (and many others), but jurors cannot testify to facts which tend to impeach it. Birmingham, R. L. & P. Co. v. Moore, 148 Ala. 115, 42 So. 1024; George's Restaurant v. Dukes, supra; Finney v. Newson, 203 Ala. 191, 82 So. 441; Continental Casualty Co. v. Ogburn, 186 Ala. 398, 64 So. 619 (and many others).

On the motion for a new trial defendant offered evidence to show that the jury made a calculation setting down twelve figures, adding them, dividing the result by twelve, and that the sum so ascertained was the amount of the verdict. Plaintiff introduced the affidavits of seven jurors, but, upon some question being raised as whether they were duly sworn to, he called to the stand one of them, and he verified the statements in the affidavit. When defendant undertook to cross-examine him, he was withdrawn by plaintiff over defendant's objection and exception. Thereupon plaintiff had this juror, Dillard Ingram, and another, K. M. Evans, to reverify their affidavits, and they were again introduced in evidence-all the other affidavits on motion of plaintiff were excluded. After the re-executed affidavits of Ingram and Evans were introduced, the following proceeding occurred:

"On cross-examination, the witness Dillard Ingram, testified as follows:

"'I stated in my direct examination that this was my signature to this paper and that the facts stated therein were true. I did not prepare this paper; I was not interviewed previous to its being typewritten and prepared, and it was prepared in its present form the first time I saw it, and the language on this paper is not my language at all.'

"Thereupon counsel for the defendant asked the witness the following question:

"'Q. Now, the next statement contained in this paper is,' the discussion then turned upon the amount and it was found that the individual members of the jury differed in their opinions as to what the plaintiff ought to have 'now, then tell the court just what was then said and done?'

"To which question, the plaintiff objected, and the court sustained the objection, and to this ruling of the court, the defendant, then and there, in open court, duly and legally excepted.

"Mr. Foster (counsel for defendant) then stated: "'We have a right to cross examine the witness on his testimony given as a witness, whether or not they have the right to withdraw him. We expect to show by this witness on the question that he would state in his own language that some member of the jury then suggested that the members of the jury put down on separate pieces of paper the amount of damages that he thought should be awarded, and that they add that up and divide it by twelve, and that being the verdict of the jury, and that the jury without further discussion on that proceeded to compile it and added them and divided them by twelve which gave $3,666.66, and then after some discussion a verdict was returned into court for that specific amount.'

"To this offer to show the plaintiff objected, and the court sustained the objection on the ground it sought to impeach the verdict. The defendant then and there, in open court, duly and legally excepted to the ruling of the court.

"Counsel for the defendant then asked the witness the following question:

"'Q. Mr. Ingram, did some member of the jury suggest that each man put down this amount he thought should be awarded and that they all add it up and divide it by twelve?'

"To which question the plaintiff objected, and the court sustained the objection on the ground it goes to the impeachment of the verdict, and to this ruling of the court, the defendant, then and there, in open court duly and legally excepted.

"Thereupon the defendant offered to show that was done.

"Counsel for the defendant then asked the witness the following question:

"'Q. And did the jury thereupon, upon such suggestion being made proceed at once, each member putting down the amount that he thought should be awarded and that these amounts were added up and divided by twelve?'

"To which question, the plaintiff objected, and the court sustained the objection, and to this ruling of the court, the defendant, then and there, in open court, duly and legally excepted.

"Thereupon the defendant offered to show that was done.

"To which offer to show the plaintiff objected, the court sustained the objection, and to which ruling the defendant, then and there, duly and legally excepted.

"Counsel for defendant then asked the witness the following question:

"'Q. And when that quotient was determined did the jury return these specific figures into court as the verdict of the jury?'

"To which question the plaintiff objected; the court sustained the objection, and to this ruling of the court, the defendant then and there, duly and legally excepted.

"The defendant thereupon offered to show that the jury after the quotient of

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