Moore v. Cooke
| Decision Date | 19 January 1956 |
| Docket Number | 6 Div. 781 |
| Citation | 84 So.2d 748,264 Ala. 97 |
| Parties | W. R. MOORE v. R. C. COOKE. |
| Court | Alabama Supreme Court |
Robert D. Norman, Birmingham, for appellant.
Bainbridge & Mims, Birmingham, for appellee.
The following charges were refused to defendant:
(Charges 44 and 48 are the same as charges 43 and 47, respectively, except that they apply to the wanton count.)
This is an action in damages for property damage and for personal injuries arising out of a collision between an automobile owned and driven by defendant and an automobile owned by plaintiff in which he was riding, but which was being driven by his daughter.
The collision occurred on the Rocky Ridge Road in Jefferson County, which road runs generally east and west.
The case was tried on Count 1 for simple negligence, Count 2 for wanton injury, and the plea of the general issue in short by consent in the usual form.
There was jury verdict for plaintiff, Cooke, in the amount of $6,365. Judgment followed the verdict. The defendant's motion for new trial was overruled and denied after plaintiff filed a remittitur of $1,365 and after the original judgment was reduced to $5,000. The defendant, Moore, has appealed to this court.
In brief filed here on behalf of appellee, plaintiff below, it is suggested that the appeal may be subject to dismissal by this court of its own motion for the reason that the questions for decision have become moot because of the payment of the judgment by the defendant's insurance carrier.
The general rule is that an appeal is subject to dismissal if, pending the appeal an event occurs which makes a determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief. Williams v. Wert, 259 Ala. 557, 67 So.2d 830; Shelton v. Shelton, 248 Ala. 48, 26 So.2d 553; Gaines v. Malone, 242 Ala. 595, 7 So.2d 263; Coleman v. Mange, 238 Ala. 141, 189 So. 749.
We have said that when it is apparent from the record before us that the questions presented have become moot (or the appeal abandoned), this court will dismiss the appeal ex mero motu. Francis v. Scott, 260 Ala. 590, 72 So.2d 93. However, the rule has long obtained in this state that the mere payment of a judgment by a judgment debtor does not work a waiver of the right of appeal. First Nat. Bank of Birmingham v. Garrison, 235 Ala. 94, 177 So. 631, and cases cited. See Freeman on Judgments, 5th Ed., § 1165, p. 2410. We think that principle has application here, for if it can be said that the record before us sufficiently shows a payment of the judgment from which this appeal is taken, it is conceded that such payment was made by the insurance carrier on the defendant's behalf.
The plaintiff's car was traveling west, the defendant's was going east. The weather was dry and visibility was excellent; the time was between five and six o'clock on the afternoon of Saturday, September 6, 1952. The collision occurred at a point 300 to 350 feet east of a bridge which is situate at the bottom of two hills and on a curve. The defendant's car had crossed the bridge at the time of the collision.
The evidence is clear, in fact it is without dispute, that at the time of the impact the plaintiff's automobile was partly on the northern shoulder of the road and that the defendant's car had left the southern lane and had crossed into the northern lane in which plaintiff's car had been proceeding in a westerly direction.
The testimony of the plaintiff and that of his daughter is to the effect that just prior to the collision the defendant's automobile was traveling at a speed of seventy to eighty miles an hour and that their car was moving at a speed not in excess of thirty-five miles.
The defendant and his wife both testified, but their testimony is not in conflict in many respects with the testimony offered on behalf of the plaintiff. In fact, Mrs. Moore's testimony sheds no light whatever on the question as to how the collision occurred. She and the defendant both testified she was asleep at the time of the accident and had been asleep for thirty minutes prior thereto.
The defendant testified that he and his wife were returning to their home in Birmingham in a new automobile from a visit to his mother in Montgomery when the collision occurred; that from the time he left Montgomery until he reached a point approximately 500 feet west of the place where the collision occurred, he tried to keep the speed of his car between thirty and forty miles an hour, but he might have exceeded that limit 'a little bit'; that when he reached a point approximately 500 feet west of the point of collision he 'began to feel numb and stiff like, and choking'; that he couldn't speak and couldn't raise his foot off the accelerator at the time of the seizure; that within a few seconds after the seizure he became unconscious and remembers nothing about the accident; that he has no recollection of driving his car across the bridge, around the curve, and into the automobile belonging to plaintiff.
The appellant offered no testimony, medical or otherwise, in support of his statement that he became unconscious in the manner and at the time indicated above. But based on his testimony alone to that effect the appellant insists that he was entitled to the affirmative charges with hypothesis as to both counts, which charges he duly requested in writing.
Appellant has cited cases from other jurisdictions wherein it has been held that a driver of an automobile is not liable for injuries sustained in a collision which resulted solely from the fact that the driver fainted or became unconscious from an unforeseen cause immediately before the collision.
The case at bar is distinguishable from authorities such as Cohen v. Petty, 62 App.D.C. 187, 65 F.2d 820; Armstrong v. Cook, 250 Mich. 180, 229 N.W. 433; and Weldon Tool Co. v. Kelley, 81 Ohio App. 427, 76 N.E.2d 629, cited by the appellant, where the evidence of the driver's sudden unconsciousness was uncontradicted or would support no other reasonable inference.
The plaintiff below, appellee here, testified: 'Shortly before the impact I saw him [defendant] straighten up, stiffen himself suddenly as a person applying the brakes, and seemed to be fighting the wheel trying to regain control of his car.' And the testimony of an investigating officer is in substance that appellant's car traveled forty-two feet with a full application of its brakes immediately before it collided with appellee's car. As before indicated, from the point where appellant says he first lost...
To continue reading
Request your trial
-
Central of Georgia Ry. Co. v. Steed
...Funeral Home(s) Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536; Birmingham Elec. Co. v. Howard, 250 Ala. 421, 34 So.2d 830; Moore v. Cooke, 264 Ala. 97, 84 So.2d 748.' of a specified amount of damages. Waters v. Anthony, 256 Ala. 370, 54 So.2d 589; Brasfield v. Hood, 221 Ala. 240, 128 So. 43......
-
Salotti v. Seaboard Coast Line R. Co.
...of law without instructing the jury as to its effect upon the issues in the case on trial may be refused without error. Moore v. Cooke, 264 Ala. 97, 84 So.2d 748; Frith v. Studdard, 267 Ala. 315, 101 So.2d 305. Moreover, the charge was misleading in that it might be understood as charging a......
-
Airheart v. Green, 8 Div. 904
...... Luquire Funeral Home Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536; Birmingham Elec. Co. v. Howard, 250 Ala. 421, 34 So.2d 830; Moore v. Cooke, 264 Ala. 97, 84 So.2d 748. On a studious consideration of the entire record in the light of the above guiding principles, ......
-
Deramus v. Alabama Power Co.
...90. In the event of such failure or omission, the aggrieved party is at liberty to request appropriate written charges. Moore v. Cooke, 264 Ala. 97, 84 So.2d 748; Sovereign Camp, W.O.W. v. Screws, 218 Ala. 599, 119 Next, they are acquiring the right to The portions of the court's oral charg......