Robbins v. Voigt

• Decision Date: 20 October 1966
• Docket Number: Nos. 6,6 Div. 48,s. 6
• Citation: 191 So.2d 212,280 Ala. 207
• Parties: Paul H. ROBBINS et al. v. Alma W. VOIGT et al. Div. 47,
• Court: Alabama Supreme Court

Page 212

191 So.2d 212

280 Ala. 207

Paul H. ROBBINS et al. v. Alma W. VOIGT et al.

Nos. 6 Div. 47, 6 Div. 48.

Supreme Court of Alabama.

Oct. 20, 1966.

Davies, Williams & Wallace, Birmingham, for appellants.

Rogers, Howard, Redden & Mills, Birmingham, for appellees.

PER CURIAM

Defendants, Paul H. Robbins and his corporate employer, Joslyn Manufacturing and Supply Company, a Corporation, here appeal from two judgments rendered in the Circuit Court of Jefferson County, one of which is in favor of Mrs. Alma W. Voigt for personal injuries alleged to have been sustained in a collision between the automobile she was driving and one driven by Paul H. Robbins while on business for his corporate employer, and the other in favor of H. V. Voigt, Mrs. Voigt's husband, for medical expenses in the treatment of his wife, and for loss of his wife's services, consortium and society caused by said personal injuries to his wife. He also claimed damages to his automobile that his wife was driving when the collision occurred on September 23, 1960.

The two cases, that of the wife and the husband, against defendants were consolidated, under a law applicable to Jefferson County, and tried jointly with separate verdicts. The appeals here are likewise consolidated for submission and consideration of this Court.

The jury returned a verdict for Mrs. Voigt in the sum of $2,000.00, and in favor of the husband for $4,000.00. Appropriate judgments were duly entered.

While we have carefully read the entire record of the pleadings and the evidence, to the end that we might obtain a reasonably accurate mental picture of the entire proceedings, supplementing the contentions of the parties as to what occurred, we do not think it is necessary to detail our observations beyond the perspective of the assignments of error. Both parties have submitted excellent briefs that have been very helpful to us. The trial court gave a very clear and comprehensive oral charge on the issues and law of the two cases, and which we are sure the jury found very helpful to them in reaching their verdicts. The lawyear for the parties in the trial were very dutiful in adhering to the issues.

As we view the evidence, it appears that Mrs. Voight was driving west on Morris Avenue in the block between 19th Street on the east and 18th Street on the west, in the City of Birmingham, when, having reached a point somewhere near the middle of the block, the collision occurred. Mr. Robbins was driving an automobile in the same direction, west, when, having first stopped for some traffic to pass, he proceeded, at a very moderate rate of speed, in the direction of a left turn to reach a parking area on the south side (to his left) of Morris Avenue. While he was in the process of making this left turn, with his left signal light blinking, according to his contention, to indicate the turn, the automobile driven by Mrs. Voigt came up to his rear, and without seeing her, although he claims to have looked, he drove his car to a position where the left side of his car collided with the right sector of Mrs. Voigt's car. It is averred in both complaints of the plaintiffs that the damages claimed were the proximate result of the alleged negligence of defendant Robbins.

The parties pleaded the usual pleas in short which raised the issue of negligence on the part of the defendant Robbins and contributory negligence on the part of the plaintiff, Mrs. Voigt. The jury by its verdict decided the issues in favor of plaintiffs and against the defendants.

A factual issue submitted to the jury was whether or not Mr. Robbins was violating a Birmingham City Ordinance in making or attempting to complete a left turn at the point involved. The City had an ordinance, of which the trial court and this Court take judicial notice, reading as follows:

'It shall be unlawful for a person driving a vehicle upon a roadway to make a left turn upon such roadway outside of an intersection of streets for the purpose of entering any alley, garage, parking lot, filling station or private driveway.'

It will be noted that Mr. Robbins testified at the trial in the lower court that he was in the process of making a left turn outside of the intersection when the collision occurred. It seems that he had stopped just west of two motor trucks parked near 19th Street and close to where the collision occurred. The trucks were parked in a loading zone that took up part of Morris Avenue on the north side. These parked vehicles protruded at right angles into Morris Avenue and prevented full use of Morris Avenue on the north side. Mr. Robbins contends that after passing the parked trucks, he stopped for traffic to clear so that he could reach the parking lot. This he was trying to do when Mrs. Voigt drove up, unknown to him, and the collision occurred.

It further appears that plaintiff's attorney in his opening statement to the jury said: 'We further except the evidence to show that he (referring to Robbins) was issued a citation charging him for traffic violation.' The trial court sustained defendants' objection to this remark, and in compliance with defendants' request, the trial court instructed the jury:

'Yes, that is excluded from your consideration, that would not have any bearing on the negligence that will be involved in this case, that part is excluded.'

This remark of counsel was the basis of Assignment of Error No. 1 in both cases following motion for a mistrial that was overruled.

We will here advert to Assignment of Error No. 3 in both cases which brings to our attention the action of the trial court in overruling motion for a new trial that followed question propounded by plaintiffs' counsel to defendant Robbins as follows:

'Q. Mr. Robbins, you paid a fine to the City of Birmingham for a traffic violation for making an improper turn * * *'

The trial court properly sustained defendant's objection to the question and gave the jury very satisfactory and explicit instructions not to consider this question or its implications.

It is our opinion that neither of these assignments of error relative to Robbins' payment of a fine has any merit. While the opening remark of counsel and the aforementioned question have implications that defendant did pay a fine, both were promptly excluded from consideration of the jury. The jury certainly was informed by defendant Robbins' own testimony that he was in process of making a turn in violation of an ordinance of the City of Birmingham. The mere implication that he paid a fine does not alter defendant's own testimony that he violated a city ordinance. Such implication of a fine, and the payment thereof, was improper and properly excluded, but in our judgment not so highly prejudicial as to justify a mistrial or serve as a ground for a new trial. Both of these assignments, 1 and 3, are without merit.

Assignment of Error No. 5

(Mrs. Voigt's case only)

This assignment complains that the trial court committed prejudicial error in stating to the jury in its oral charge that the wanton count was being eliminated for 'technical reasons.' Defendants excepted to the use of this language, whereupon the trial court proceeded further to explain why the wanton count was eliminated. While the use of the words for 'technical reasons' might have been somewhat inept in charging out this count, we do not think the trial court committed reversible error by use of the language. The court in its oral charge to the jury, after exception, used appropriate and adequate action as to why this count was eliminated. The contention of appellants that the trial court's diction in the use of the afore-quoted words tended 'to put the court in the attitude of casting some distrust, doubt or suspicion upon defendants' case' is without merit.

Assignments of Error 2 and 15

(both cases)

Appellants complain in assignment 2 of the action of the trial court in refusing to require appellees to offer in evidence the answers of defendant, Joslyn Manufacturing and Supply Company, to certain interrogatories. Assignment 15 in each case complains that the trial court erred in sustaining the objection of appellees to the introduction of such answers of defendant Robbins when offered by appellants. The questions in the interrogatories to Joslyn are as follows:

'10. State the purpose of the trip on which the said Paul H. Robbins was engaged at the time of the said collision.

'11. State his destination on the said occasion and his purpose for going to this destination.'

The purported answer of defendant Joslyn Manufacturing and Supply Company to the above questions was as follows:

'10 and 11. The information with reference to the questions asked in these interrogatories is contained in the answers to interrogatories by our employee Paul H. Robbins and his answers are all the information we have in that regard. We hereby adopt those answers.'

Obviously, the effect of this answer was to importune plaintiffs to introduce in evidence the answers of defendant Robbins to plaintiffs' interrogatories, whether the answers were favorable or unfavorable to plaintiffs. Defendant Joslyn Corporation did not respond to questions 10 and 11 with specific answers. There was no duty on the part of plaintiffs to cast about in the answers of defendant Robbins for answers to questions 10 and 11. These questions were not specifically answered, and as we have stated, plaintiffs were not under duty to accept the invitation of defendant Joslyn to search somewhere else for answers that were adopted. The answers to questions 1 through 9 were admissible irrespective of plaintiffs' acceptance or rejection of the invitation to search somewhere else for answers to 10 and 11. Assignment of Error No. 5

(H. A. Voigt's case only)

Appellants here complain that the trial court erred in overruling their objection as a recoverable item of damages--the bill of Dr. Rowe for treatment of Mrs. Voigt following the collision. Burden was on plaintiff...