Parker v. Muse
| Decision Date | 14 July 1971 |
| Docket Number | 8 Div. 48 |
| Citation | 47 Ala.App. 84,250 So.2d 688 |
| Parties | Dennis Eugene PARKER v. Kenneth H. MUSE et al. |
| Court | Alabama Court of Civil Appeals |
Loma B. Beaty, Fort Payne, for appellant.
Dawson, McGinty & Livingston, Scottsboro, for appellees.
Verdict and judgment for damages in the amount of $4000 in favor of plaintiff was rendered in the Circuit Court of Jackson County, Alabama, on March 12, 1970. Upon denial of motion for new trial, defendant below appealed from judgment and denial of motion for new trial.
The suit began by complaint for damages to the airplane of plaintiff proximately caused by the negligence of defendant in the operation of another airplane at the airport in Scottsboro, Alabama. Demurrer to the complaint was overruled. Defendant filed 17 pleas, including a plea of set-off or recoupment. Demurrer of plaintiff was sustained to all pleas but 1, 2, and 6. The plea of recoupment was withdrawn by defendant at time of trial. Pleas 1 and 2 were of the general issue and plea 6 was a plea of contributory negligence.
The evidence tended to show that on the afternoon of June 20, 1968, plaintiff, Kenneth H. Muse, a duly licensed and experienced pilot was operating plaintiff's airplane while making an approach to land at the Scottsboro airport. Defendant, a student pilot, was operating an airplane at the same time and place. As plaintiff Muse was making his landing and while on the ground, his plane was struck from above and behind by the plane of defendant. As a result of the collision, plaintiff's plane was severely damaged, the rear of the fuselage and tail being totally domolished.
Defendant, though not having seen plaintiff's plane before the collision, contended that plaintiff was taking off rather than landing at the time of collision. Three witnesses on the ground, who either saw the accident or saw the planes immediately before or immediately after the collision, stated both planes were landing at the time of collision.
This appeal brought by defendant below, hereafter called appellant, assigns as error the denial of his motion for new trial, various rulings of the trial court during the trial which were set out as grounds in the motion for new trial, and the sustaining of demurrer to his pleas.
In brief, appellant has set out various propositions of law, and his argument is in support of such propositions rather than to his assignments of error. Appellee has contended in his brief that such procedure is not in accordance with the Supreme Court rules and moves to dismiss the appeal. We deny such motion. Though the method of argument in brief followed by appellant is not in strict adherence to the rules of the Supreme Court we consider that appellant has sufficiently pointed out errors so that appellee and this Court are able to determine the matters complained of. We would suggest to counsel for appellant that rules of the Supreme Court be studied prior to preparation of brief in future appeals and that effort be made to follow their direction.
The errors assigned and argued in brief are in fact grounds contained in the motion for new trial, since the ruling on the motion is assigned as error, each ground contained therein and argued in brief will be considered as an assignment of error. National Life & Acc. Ins. Co. v. Allen, 285 Ala. 551, 234 So.2d 567; Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37; James v. Governor's House, 284 Ala. 404, 225 So.2d 815; Reynolds Bros. Lmb. Co. v. W. S. Newell Const. Co., 284 Ala. 352, 224 So.2d 899.
Appellant begins his argument by stating that the chain of events which prevented him from receiving any 'semblance of a fair and impartial trial' began with the sustaining of demurrer to his pleas 3 through 5 and 7 through 16.
We have examined each of these pleas and find no error in the sustaining of demurrer or them. Plea 3 is defective in form as a plea of contributory negligence. Plea 3(b) is nothing more than a denial of the allegations of the complaint as to proximate cause. There was already a plea of not guilty and a denial of the truth of the complaint, that is, a plea of general issue. Plea 4 was another form of denial of the allegation of the complaint as to damages and it was not error to sustain demurrer to it. Pleas 5, 7, 9, 10, 11, 12, 13, 14, 15 and 16 were efforts to plead contributory negligence by setting out conclusions of fact which were averred to constitute negligence on the part of appellee. All of these alleged acts of appellee, if established by the evidence, were admissible under plea 6, a general plea of contributory negligence, to which plea demurrer was overruled.
Appellant argues that the sustaining of demurrer to his pleas prevented him in some way from presenting evidence and having written charges read relating to such pleas. He offers no authority in support of such argument, and the propositions of law presented are not in point. As previously stated herein every allegation of fact contained in the defective pleas, if provable, was admissible under the general plea of contributory negligence. Broad general propositions of law are not sufficient unless applied to the ruling assigned as error. Melton v. Jackson, 284 Ala. 253, 224 So.2d 611.
We find no error prejudicial to appellant in the trial court's sustaining demurrer to appellant's pleas.
Appellant next contends error in the trial court's allowing testimony of appellee Muse as to ownership of the aircraft over his objection. It is argued such oral statement of ownership violated the best evidence rule.
We find no violation of the best evidence rule here. The contents of a writing in existence was not in issue in this case. It is only in such cases that the socalled Best Evidence Rule applies. Street v. Nelson, 67 Ala. 504; 4 Wigmore, Evidence (3rd Ed.), Section 1246. It has long been settled in this state that ownership of personal property is a fact to which a witness may testify. McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756.
It appears from argument in brief that the next charge of error is the overruling by the trial court of objection of appellant to questions propounded to appellee by his counsel relating to a sale of the damaged plane and the amount received from such sale. The rulings involved here were challenged by assignments of error, 4, 5 and 6. Though appellant does not refer to such assignments in brief, contrary to case interpretations of Rule 9, Supreme Court rules, again we are able to discern his point of argument and will consider the assigned error.
The objection of appellant to the questions propounded were general and without assigned grounds. The questions and objections were as follows:
'Mr. Beaty: We object to that--what he got for it.'
'The Court: Overruled.'
'Mr. Beaty: We except.'
'The Court: Overruled.'
'Mr. Beaty: We except.'
A general objection that a question is irrelevant, illegal and immaterial cannot be made...
To continue reading
Request your trial
-
Burgreen Contracting Co., Inc. v. Goodman
...such an objection, the court cannot be put into error for its ruling unless the evidence sought is patently inadmissible. Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688. Dr. Goodman, a practicing veterinarian in Limestone County and the owner of the mares, was the only witness to testify con......
-
Crawford v. State
...Wood Realty Co., 260 Ala. 527, 71 So.2d 1 (1954); Schreiber v. Equico Lessors, 428 So.2d 69 (Ala.Civ.App.1983); Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688 (Ala.Civ.App.1971). V Just before the trial of this case was to begin, the appellant told the trial judge he didn't feel his attorney......
-
Deramus v. Alabama Power Co.
...in the motion, and argued in brief will be considered on appeal. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37; Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688. Though assignments 7, 8, 9 and 10 are not for consideration, appellants have assigned as error the overruling of the motion f......
-
Spence v. Allstate Ins. Co.
...(D.R.I.1986); Southwest Bank & Trust Co. v. Executive Sportsman's Ass'n, 477 S.W.2d 920, 924 (Tex.Civ.App.1972); Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688, 691 (1971). Thus, since the jury found that James Spence did have a sole or separate interest in the personal property, we must exa......