Roan v. Smith, 1 Div. 770

CourtSupreme Court of Alabama
Writing for the CourtLIVINGSTON
Citation272 Ala. 538,133 So.2d 224
Decision Date21 September 1961
Docket Number1 Div. 770
PartiesFred ROAN et al. v. Jack C. SMITH.

Page 224

133 So.2d 224
272 Ala. 538
Fred ROAN et al.
v.
Jack C. SMITH.
1 Div. 770.
Supreme Court of Alabama.
Sept. 21, 1961.

[272 Ala. 540]

Page 225

Bart B. Chamberlain, Jr., Mobile, for appellants.

M. A. Marsal, Mobile, for appellee.

LIVINGSTON, Chief Justice.

This is an appeal from a judgment of the Circuit Court of Mobile County in a suit filed by Jack Smith, the appellee, charging Fred Roan and his two brothers, individually, separately and severally, and doing business as St. Louis Motors, a partnership, with conversion of the plaintiff's 1951 Ford automobile. To the complaint, the defendants filed a general denial. The issue was tried by a jury and a verdict was returned for the plaintiff in the amount of $1,250. From this verdict and judgment, the defendants appealed.

The evidence is in conflict. The appellee's version of the transaction, and he offered evidence to support it, is as follows:

Page 226

Jack Smith, the plaintiff in the lower court and appellee on this appeal, went to the St. Louis Motors used car lot looking for a used car. After finding a 1953 Chevrolet that he liked, the salesman told him to take the car home with him that night to try it out and requested the appellee to sign some blank papers so that he would be covered by insurance in case of an accident. It was understood that there was no sale and the appellee was to return the car the next day at noon and then decide on the transaction. The appellee did drive the Chevrolet home and left his Ford on the appellant's lot over night. The next day when appellee returned the Chevrolet, having decided not to trade, he was told that he had signed papers the preceding night agreeing to trade, and that in order to get his car back he would have to pay $25. Appellee and appellant discussed this matter for about two hours and then appellee paid the $25 and got his car and left. The papers which were signed by appellee were destroyed and appellants contend they were a bill of sale and that appellee knew this when he signed them, and they offered evidence to sustain this view of the transaction.

There is much conflict of testimony concerning the transaction and the agreement between the parties. The jury resolved the issues in favor of appellee and returned a verdict for the plaintiff in the court below.

There are 23 assignments of error and they will be discussed in the order in which appellant chose to argue them.

Assignment of Error No. 12:

'The Court erred in qualifying the jury, at the request of the Plaintiff, as to whether any member thereof was interested in or indebted to Cadillac Finance Company.'

The record shows the following:

'Court: Are there any further qualifications, gentlemen?

'Mr. Marsal: I would ask the Court to qualify the Jury as to whether or not they have any interest or are indebted to the Cadillac Finance Company.

[272 Ala. 541] 'Mr. Chamberlain: I do not think that is a proper ground of qualification. There is nothing to show what Cadillac Finance Company is.

'Mr. Marsal: If it please the Court, we expect to show that the Roans have an interest in it, and that they finance automobiles sold by Roan, and the Jury should have knowledge of it.

'Court: Are they involved in this law suit?

'Mr. Marsal: The Roans own the Cadillac Finance Company.

'Mr. Chamberlain: The Cadillac Finance Company is not involved in this suit.

'Mr. Marsal: We expect to show that the Cadillac Finance Company is owned by Fred Roan and his brothers, and we would like the Jury qualified as to whether or not they have any interest in it.

'Court: Are any of you gentlemen interested financially or employed by Cadillac Finance Company? (None so stated).'

The inquiries directed to prospective jurors as permitted under Tit. 30, § 52, Code of 1940, should be liberal and extend to any and all matters touching the qualifications, interest or bias of prospective jurors. The extent of this examination of prospective jurors as to their qualifications is largely a matter resting within the sound discretion of the trial court. Dyer v. State, 241 Ala. 679, 4 So.2d 311; Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 63 So.2d 895; Sims v. Struthers, 267 Ala. 80, 100 So.2d 23; Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 126 So. 869; Louisville & N. R. Co. v.

Page 227

Davis, 236 Ala. 191, 181 So. 695; Ballard v. State, 28 Ala.App. 346, 184 So. 259; 236 Ala. 541, 184 So. 260; Code of 1940, Tit. 30, Sec. 52.

The attorney for the appellee stated to the court: 'The Roans own the Cadillac Finance Company.' This statement was not denied by appellants. Under such circumstances, we think, the trial court did not abuse its discretion in qualifying the jury as to any interest in the Cadillac Finance Company. Moreover, since no jurors answered the question in the affirmative, and not being struck as a result of such answer, it appears that even if the trial court was in error, it was error without injury.

Assignments of Error Nos. 13, 14 and 15 follow:

'13. The Court erred in permitting Plaintiff's attorney to quote to the jury alleged conversations between one of the Appellants and other persons at times several years before the occurrences out of which this litigation arose, which earlier conversations did not involve or refer to the transaction out of which litigation arose in this cause.

'14. The Court erred in allowing the witness Dale McCaleb to testify to the details of a transaction between McCaleb and Toulminville Motors, Inc. in 1954 to which Plaintiff in this cause was not a party, and in which he was not interested.

'15. The Court erred in allowing the Plaintiff to introduce in evidence a blank contract signed by the witness Dale H. McCaleb in 1954.'

The above three assignments of error are so closely related that they can be disposed of together. Whether or not the offer of evidence will be denied on the ground of remoteness is a question to be decided by the trial court in the exercise of sound discretion, and such ruling by trial court will not be revised on appeal unless it is plain that error was committed. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; Springer v. Sullivan, 218 Ala. [272 Ala. 542] 645, 119 So. 851. We take judicial knowledge of our own records. Se Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358.

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65 practice notes
  • National Ass'n for Advancement of Colored People v. State, 3 Div. 996
    • United States
    • Supreme Court of Alabama
    • February 28, 1963
    ...& Nashville R. Co., 187 Ala. 480, 65 So. 397. A more specific statement was made as to assignment of error No. 17 in Roan v. Smith, 272 Ala. 538, 133 So.2d 224, than as to assignment 11 in the instant case, but we held it insufficient because it not only failed to 'state that the court ......
  • Bryant v. State, 6 Div. 339
    • United States
    • Alabama Court of Criminal Appeals
    • November 21, 1972
    ...determination of whether or not particular evidence is relevant rests largely in the sound discretion of the trial court. Roan v. Smith, 272 Ala. 538, 133 So.2d 224, and cases cited. The rule pertaining to written statements allegedly made by the appellants or their companions just prior to......
  • Central of Georgia Ry. Co. v. Steed, 6 Div. 774
    • United States
    • Supreme Court of Alabama
    • April 8, 1971
    ...the court cautiously exercised its discretion to examine the prospective jurors, and the record supports his position. In Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961), this Court 'The inquiries directed to prospective jurors as permitted under Tit. 30 § 52, Code of 1940, should be libe......
  • Warren v. Ford Motor Credit Co., No. 81-7948
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 27, 1982
    ...insult or other aggravating circumstances. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961). "However, it has never been stated that one must show, before a jury issue is made out on the question of punitive damag......
  • Request a trial to view additional results
65 cases
  • National Ass'n for Advancement of Colored People v. State, 3 Div. 996
    • United States
    • Supreme Court of Alabama
    • February 28, 1963
    ...& Nashville R. Co., 187 Ala. 480, 65 So. 397. A more specific statement was made as to assignment of error No. 17 in Roan v. Smith, 272 Ala. 538, 133 So.2d 224, than as to assignment 11 in the instant case, but we held it insufficient because it not only failed to 'state that the court ......
  • Bryant v. State, 6 Div. 339
    • United States
    • Alabama Court of Criminal Appeals
    • November 21, 1972
    ...determination of whether or not particular evidence is relevant rests largely in the sound discretion of the trial court. Roan v. Smith, 272 Ala. 538, 133 So.2d 224, and cases cited. The rule pertaining to written statements allegedly made by the appellants or their companions just prior to......
  • Central of Georgia Ry. Co. v. Steed, 6 Div. 774
    • United States
    • Supreme Court of Alabama
    • April 8, 1971
    ...the court cautiously exercised its discretion to examine the prospective jurors, and the record supports his position. In Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961), this Court 'The inquiries directed to prospective jurors as permitted under Tit. 30 § 52, Code of 1940, should be libe......
  • Warren v. Ford Motor Credit Co., No. 81-7948
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 27, 1982
    ...insult or other aggravating circumstances. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961). "However, it has never been stated that one must show, before a jury issue is made out on the question of punitive damag......
  • Request a trial to view additional results

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