Pinckard v. Dunnavant
| Citation | 281 Ala. 533,206 So.2d 340 |
| Decision Date | 11 January 1968 |
| Docket Number | 4 Div. 294 |
| Parties | W. D. PINCKARD v. Charles Raymond DUNNAVANT. |
| Court | Supreme Court of Alabama |
Thos. F. Parker, Montgomery, for appellant.
Oliver W. Brantley and John W. Gibson, Troy, for appellee.
Suit below was for damages resulting to the plaintiff when he allegedly fell into a grease pit located on the premises of the Truck City Truck Stop, a combination filling station and restaurant.
The complaint was in two counts and named W. D. Pinckard and James T. Elmore as defendants.
Count 1 charged the defendants with the negligent maintenance of the premises, while Count 2 charged wantoness in such maintenance.
The defendants' demurrer to the complaint being overruled, the defendants filed a plea of the general issue and a plea of contributory negligence. In addition, the defendant W. D. Pinckard filed a plea asserting that at the time in question he was not engaged in the business of maintaining the truck stop (Plea III), and an additional plea to the effect that at the time of the alleged injury to the plaintiff, the premises had been leased by the defendant Elmore (Plea IV).
The court sustained the plaintiff's demurrer to Plea III, and at the start of the trial the defendant withdrew Plea IV. Thus issue was joined on the complaint and the pleas of the general issue and of contributory negligence.
The jury returned a verdict in favor of the plaintiff and against the defendant W. D. Pinckard only, damages being assessed at $7,000. Judgment was entered pursuant to the verdict.
Pinckard's motion for a new trial being overruled, an appeal was perfected to this court.
The plaintiff's evidence tended to show that on 21 February 1967, at about dark, the plaintiff drove into the truck stop and parked his car near a small building adjacent to the restaurant portion of the premises. He went into the restaurant and had a cup of coffee. He inquired for Mr. Elmore but he was not about. Leaving the restaurant, he returned to his automobile and as he was opening his automobile he saw someone in the rear of the restaurant as a door was opened temporarily. He thought it was Mr. Elmore and he started to walk to where this person was seen. Almost immediately he fell into the grease pit. He called for help but no one came to him and with effort he got out of the grease pit and to his automobile. He drove to his home and by sounding his automobile horn, he attracted the attention of his wife and mother. They came to his automobile and helped him into the house.
The two women removed his wet and greasy clothes. The plaintiff was in considerable pain, and his mother called Dr. Golden. The doctor could not be located that night, and home remedies such as hot and cold packs were applied to plaintiff's swollen knee.
The next day, 22 February 1967, Dr. Golden was reached at a hospital, and he came to the plaintiff's home that night.
Dr. Golden testified that when he examined the plaintiff, he found his knee badly swollen, concluded it was an orthopedic case, and either called Dr. Johnson, an orthopedic specialist in Dothan, or told the plaintiff to go to Dr. Johnson. Dr. Golden testified he probably gave the plaintiff some sedatives on the occasion of his visit but otherwise did not treat him.
The next day the plaintiff went to Dr. Johnson. Dr. Johnson found the knee swollen and tender. X-rays revealed a fracture inside the knee joint involving the upper end of the tibia that extended 'through the spikes of bones that are there to hold the ligaments of the knee.' A long cast was placed on the right leg. The cast remained on the leg for four weeks, when the plaintiff was allowed to use crutches 'without any weight bearing.' A week later, the plaintiff was allowed to use a cane. Dr. Johnson last saw the plaintiff on 27 April 1967. At this time the range of motion in the knee was normal, and the ligaments were normal. X-rays revealed the fracture had healed. The plaintiff testified he was physically unable to return to his work as a heavy machine operator until 1 July 1967.
The plaintiff also read to the jury the pre-trial depositions of Pinckard and Elmore. Both testified that Pinckard was the owner of the premises on which the bus stop business was located. Under an oral agreement between the two, Elmore was to operate the filling station and was to receive 4cents per gallon on each gallon of gasoline sold, and 2cents per gallon on the diesel oil, and Elmore was to get the use of the restaurant building free of rent. The income from music boxes in the restaurant was to be split fifty-fifty.
Elmore testified that Pinckard maintained the premises, checked the pumps, did any needed painting, and maintained the driveways. Pinckard had filled in a gully near the driveway after Elmore had first moved there. Elmore testified that the fuel and oil was not owned by him, but was sent to him on consignment. Shortly after the accident in question two men whom Elmore did not know came by and filed in the grease pit.
Pinckard's testimony by deposition does not differ materially from that of Elmore. However, as a witness in the trial below, Pinckard testified that Elmore alone was responsible for the maintenance of the premises.
During the cross examination of Pinckard, the court overruled his objection to questions eliciting testimony that he had an insurance policy protecting him against damages to persons on the premises in question, and that he had had the grease pit filled up after the accident upon instructions from his insurer.
In overruling the objections to these questions, the court carefully instructed the jury that such evidence was being admitted solely on the question of who was responsible for the maintenance of the premises.
By appropriate assignments of error Pinckard, the defendant below, now the appellant here, has raised and argued the propriety of these rulings.
The general rule is well settled that in an action for personal injuries evidence that a defendant carries insurance protecting him from liability to third persons on account of his negligent misconduct is inadmissible. Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781; Birmingham Electric Co. v. Carver, 255 Ala. 471, 52 So.2d 200; Colquett v. Williams,264 Ala. 214, 86 So.2d 381.
However, where the fact of insurance is relevant and material to an issue in the case, and where it is collateral to other material facts, or is necessary to fully present the issues involving a legal right of the plaintiff, then the existence of insurance may be shown when such evidence is limited to the issues in question. See Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, where this...
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