Partridge v. Miller
| Decision Date | 09 November 1989 |
| Citation | 553 So.2d 585 |
| Parties | Clarence Alton PARTRIDGE and Dorothy G. Partridge v. Ernest B. MILLER. 87-1497. |
| Court | Alabama Supreme Court |
William H. Saliba, Mobile, for appellants.
Mark E. Spear and Thomas H. Nolan, Jr., of Brown, Hudgens, Richardson, Mobile, for appellee.
A jury returned a verdict for the defendant, Ernest B. Miller, in this personal injury and property damage action filed against him by Clarence A. Partridge and his wife, Dorothy G. Partridge, who sued for loss of consortium. The Partridges appeal. We affirm.
The Partridges designated as the record on appeal less than the entire transcript of the proceedings below. Five of the nine issues presented for review in the Partridges' brief were raised for the first time on appeal. These five issues are not before this Court and cannot be addressed by us. Menefee v. Veal, 484 So.2d 437 (Ala.1986). The following issues were properly presented for our review:
The accident occurred at approximately 5:00 p.m. on August 25, 1983, on Government Street in Mobile, Alabama. Mr. Miller, who was 86 years old at the time of the accident, was driving west; he turned across the eastbound lanes toward the entrance to a service station. Mr. Partridge was driving east in the outer eastbound lane. The right front fender of Partridge's automobile came into contact with the right rear fender of Miller's automobile. Neither vehicle was exceeding the posted speed limit. Partridge testified that Miller was traveling so slowly that he assumed Miller did not see him. 1 Partridge also testified that Miller stated that he was attempting to turn off of Government Street upon the suggestion of his brother, who was a passenger in Miller's automobile at the time of the accident, because Government Street was too "confusing" in 5:00 p.m. traffic. 2 A more detailed recitation of the facts would not edify the bench or the bar, and the parties themselves are fully aware of all the facts. Suffice it to say that we have reviewed the facts thoroughly, and, although we are not concerned with Mr. Partridge's credibility as a witness, we feel compelled to note that Mr. Partridge's testimony was impeached by his own witness, a retired Presbyterian minister, who had known Mr. Partridge for 34 years and who testified that Mr. Partridge would lie about something or tell a different tale to his advantage. This witness contradicted a great deal of Mr. Partridge's testimony.
"Did the court err in granting [Miller's] motion for a directed verdict on the issue of wantonness at the close of the [Partridges'] case?"
This suit was pending on June 11, 1987; therefore, Ala.Code 1975, § 12-21-12, does not apply, and the applicable standard of review is the "scintilla rule." In Hood v. Murray, 547 So.2d 75, 78 (Ala.1989), this Court, quoting Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 856 (Ala.1981), stated the standard of review for a directed verdict, using the scintilla of evidence rule, as follows:
Viewing the evidence most favorably to the Partridges, there is not a scintilla of evidence that Miller "consciously and intentionally did some wrongful act or omitted some duty which produced injury" to the Partridges. McGehee v. Harris, 416 So.2d 729 (Ala.1982). Such evidence is required to withstand a motion for a directed verdict on the issue of wantonness, and a trial court does not err in granting such a motion when the plaintiff has offered nothing more than evidence that presents a factual question as to a defendant's negligence. Whitmore v. Burge, 512 So.2d 1320 (Ala.1987); Wilson v. Cuevas, 420 So.2d 62 (Ala.1982); McGehee v. Harris, supra; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970). The only reasonable inference that can be drawn from the evidence in the present case is that Miller failed to exercise good judgment in executing the turn. The Partridges offered evidence that tended to show only negligence on Miller's part, and the question of negligence was properly submitted to the jury for its resolution. The trial court did not err in directing a verdict for Miller on the issue of wantonness.
"Did the court err in denying [the Partridges] a directed verdict on the issue of contributory negligence at the close of [Miller's] case?"
The Partridges made an oral motion for a directed verdict as to the affirmative defense of contributory negligence at the close of all of the evidence. There was evidence that Partridge did not slow his vehicle or maneuver in an attempt to avoid the accident. There was evidence that his automobile was overloaded and that, even though he was driving within the posted speed limit, he was exceeding a safe speed considering the load of lumber he was transporting. The jury could have reasonably concluded that Partridge was contributorily negligent in not slowing his automobile, or in not moving to another lane to avoid colliding with Miller's automobile, or in driving too fast considering the load of lumber that he was transporting. The trial court did not err in submitting the issue of contributory negligence to the jury. Ashbee v. Brock, 510 So.2d 214 (Ala.1987).
"Did the court err in not admitting the accident report into evidence?"
The Partridges attempted to introduce an accident report prepared by Officer James J. Coker of the Mobile Police Department, who investigated the accident, as a past recollection recorded. Officer Coker had no independent memory of the accident and was allowed to refer to the report that he had prepared at the time of the accident in order to answer questions concerning the accident, but the trial court would not permit the Partridges to introduce the report. The Partridges claim that the failure to admit the report was reversible error, citing the following cases: Bennefield v. State, 281 Ala. 283, 202 So.2d 55 (1967); Sovereign Camp, W.O.W. v. Screws, 218 Ala. 599, 119 So. 644 (1928); Nashville, Chattanooga & St. Louis Ry. v. Parker & Co., 123 Ala. 683, 27 So. 323 (1898), overruled, Rasco v. Jefferson, 142 Ala. 705, 38 So. 246 (1905); and Acklen's Executor v. Hickman, 63 Ala. 494, 35 Am.Rep. 54 (1879). We disagree. The exclusion of the report did not prejudice the Partridges in any way. Officer Coker testified at length from the report concerning all of the details contained in the report. He did not witness the accident, and he arrived after the vehicles had been moved. He recorded in the report what he had been told. The drawing included in the report was based on what he had been told, not on his personal investigation. The trial court did not err in excluding the report, and the Partridges' motion for a new trial on this ground was properly denied. Dunaway v. King, 510 So.2d 543 (Ala.1987).
"Did the court err in preventing [the Partridges] from showing statements made by [Mr. Partridge] to representatives of [Miller's] insurance company and the conduct of the insurance...
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