Otts v. Gray

• Decision Date: 23 September 1971
• Docket Number: 6 Div. 692
• Citation: 255 So.2d 26,287 Ala. 685
• Parties: Audrey W. OTTS v. Billy L. GRAY et al.
• Court: Alabama Supreme Court

Page 26

255 So.2d 26

287 Ala. 685

Audrey W. OTTS v. Billy L. GRAY et al.

6 Div. 692.

Supreme Court of Alabama.

Sept. 23, 1971.

On Rehearing Nov. 18, 1971.

Turner & Turner, Tuscaloosa, for appellant

Zeanah, Donald & Lee, Tuscaloosa, for appellee Rich V. Ellis.

Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellee General Motors Corp.

SIMPSON, Justice.

Essentially the facts involved in this case are as follows:

Appellant (plaintiff) Audrey Otts filed suit for personal injury sustained by her in an automobile accident on the 27th day of February, 1967, in Tuscaloosa County. There were three vehicles involved in the wreck, the plaintiff's Volkswagen, a Chevrolet truck driven by defendant Billy L. Gray and owned by defendant Thomas Swindle, and a Ford Comet owned and driven by Rich V. Ellis. It was raining on the day of the accident. The plaintiff and the defendant, Ellis, were both traveling north on U.S. Highway 43. The loaded cordwood truck driven by defendant Gray and owned by defendant Swindle was traveling south. As plaintiff's automobile was meeting the log truck, the left rear wheel came off the truck, crossing the highway in front of the plaintiff. Plaintiff applied her brackes and according to the plaintiff was struck from the rear by defendant Ellis as the cordwood from the log truck began falling on the plaintiff's Volkswagen. Plaintiff filed suit against the defendants Gray, Ellis, and Swindle, alleging that her injuries were the proximate result of their concurring negligence.

General Motors Corporation was brought into the suit by third-party complaints filed by defendants Gray and Swindle alleging that the plaintiff's injuries were the proximate result of the negligent manufacture of the log truck.

At the conclusion of the evidence the court granted the affirmative charge as to General Motors Corporation. The jury returned a verdict in favor of the plaintiff and against the defendant Swindle for $15,000. Following the denial of a motion for new trial this appeal was taken.

I.

It is first argued by the appellant that error was committed by the trial court with regard to the selection of the jury. The appellant demand a jury trial in this case. She contends that the manner of apportioning the strikes was error. The record shows the following in this connection:

'(The jury panel was then duly qualified and the following transpired between the Court and attorneys for all parties, and out of the presence of the jury:)

'THE COURT: Let me put this in the record. The Court has made the decision that it will allow the parties to strike on the basis of: The Plaintiff will get one-third of the strikes, the original defendants will get one-third, and the third-party defendant will get one-third. You can alternate in that manner. I will take any exceptions.

'MR. TURNER (Appellant's counsel): We would like to except to your Honor's ruling that the Plaintiff gets one-third of the strikes.

'THE COURT: I would like to recognize that the Plaintiff gets ten. The original Defendants will get ten and the Third Party Defendant will get nine. The Defendant Ellis will strike first and will get four of the ten strikes.'

It is the plaintiff-appellant's contention that the third-party defendant, General Motors Corporation, should have been treated as an original defendant in the matter of striking the jury so that she would have gotten one-half of the strikes and all original defendants and the third-party defendant would have shared one-half.

The court and all parties to this litigation without objection treated the manner ' § 54. Struck jury.--In all civil actions triable by jury, either party may demand a struck jury, and must thereupon be furnished by the clerk with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; provided, that in all judicial circuits having not more than three judges, * * * the court shall require to be made two lists of all the jurors in attendance upon the court who are competent to try the case, and not engaged in the trial of some other case, which list shall in no event contain less than twenty-four jurors from which a jury must be obtained by the parties or their attorneys, alternately striking one from the list until only twelve remain on the list, the party demanding the jury commencing; * * *.'

of jury selection as being controlled by Title 30, § 54, Code, which provides:

In construing the predecessor to this statute (Code of 1876, § 3018) this court has held that the right to a struck jury in a civil case is secured by statute,

'* * * to either party who demands it.-- * * * In the purview of this statute, there are but two parties, the plaintiff and the defendant. The statute has made no express provision for cases where there are more plaintiffs, or more defendants, than one. Each litigating side is regarded as a suit (sic) (suitor), no matter now many persons may compose it. The right to have such jury being given by statute, the opposing party cannot defeat it, either by divided counsels, or by nonaction. The court may, if necessary, compel its observance, or punish its non-observance; * * *.' Montgomery & Eufaula Railway Co. v. Thompson, 77 Ala. 448, 54 Am.Rep. 72.

In the quoted case the plaintiff had sued three corporate defendants, who had different defenses and the court held that the right of the plaintiff to a struck jury under our statute could not be defeated because more than one defendant was sued, and that it was proper to allow each defendant to strike in rotation, the plaintiff having the first strike, and the defendants collectively sharing alternate strikes.

The other method of selecting a jury is by the use of peremptory challenges. See § 53, Title 30, Code of Alabama, 1940. Again an early interpretation of this statute established that several defendants in a cause constitute out one party and are entitled to no more peremptory challenges than a single defendant. Bibb v. Reid & Hoyt, 3 Ala. 88.

Regardless of whether the selection of a jury is conducted under either of said sections, historically and traditionally the plaintiff has received one-half the challenges regardless of the number of defendants.

Alabama's Third-Party Practice Act (Title 7, § 259(1--3), Code of Alabama, 1940, as amended) contains no language concerning how a jury is to be selected when the practice authorized under said act is involved. There is language in this act which indicates that a third-party defendant is to be treated as if that third-party defendant had originally been a party defendant. Section 259(2), supra, provides in pertinent part:

'* * * The original plaintiff in an action wherein a third-party complaint is filed and any third-party defendants brought into the initial action as herein provided may assert as against each other any claims and defenses which they would have if the third-party defendants were the original parties to the action.'

Section 259(1)(b), supra, provided 'Such additional parties shall make their defenses to any such cross-claim as if originally sued'. Section 259(3), supra, provides that the Third-Party Practice Act shall be construed insofar as practical in pari materia with other laws and rules of the court governing civil actions.

Certainly no language in the Third-Party Act can be construed to indicate that the legislature intended that there be a change in the methods of jury selection when a third-party defendant is made a party to a suit. There is language that indicates that parties brought in by a third-party complaint are to be treated as if they occupy the same position as if they were made parties originally to the cause.

This court is further persuaded that the long observed practice by which the plaintiff's side of a law suit shall receive one-half of the challenges should not be overturned in its application to the third-party practice because basically the primary interest and purpose of all defendants, regardless of whether they are original parties or added parties, is to defeat the claim of the plaintiff. While defendants may have adverse interests among themselves, no injury will result to any defendant if the plaintiff fails to recover in a suit where there are multiple defendants regardless of whether they are original defendants or third-party defendants.

In the case under review the plaintiff was erroneously denied equal challenges with the defendants collectively, and therefore this cause must be reversed.

II.

The next argument made by appellant is that the trial court erred in its rulings on three questions propounded to witnesses. This argument concerns assignments of error 2, 3, and 5 which are argued together.

Assignment of error 2 complains that the trial court erred in sustaining the objection of the third-party defendant, General Motors, to the following question propounded by the attorney for the appellant:

'Q. Assuming that those cracks were in there prior to February 27, 1967, what in your opinion would have caused those cracks to come in that brake drum?

'MR. ORMOND: We object.

'THE COURT: Is that the date of the accident?

'MR. TURNER: Yes, sir.

'MR. ORMOND: We object.

'THE COURT: I sustain it unless the doctor has an opinion as to whether they were in there prior to the accident or not.'

The cases have repeatedly held that the sufficiency of the form and substance of a hypothetical question rests largely in the discretion of the trial court and will not be the basis for reversal in the absence of clear abuse of that discretion. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Brown v. Mobile Electric Co., 207 Ala. 61, 91 So. 802; Birmingham Ry. & Elec. Co. v. Butler, 135 Ala. 388, 33 So. 33; Long Distance T. & T. Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Grasselli Chem. Co. v. Davis...