Rosen v. Lawson

• Decision Date: 14 September 1967
• Docket Number: 4 Div. 222
• Parties: Rebecca Turner ROSEN v. Ruby Mae LAWSON, as Admrx., etc.
• Court: Alabama Supreme Court

Page 716

202 So.2d 716

281 Ala. 351

Rebecca Turner ROSEN v. Ruby Mae LAWSON, as Admrx., etc.

4 Div. 222.

Supreme Court of Alabama.

Sept. 14, 1967.

A. R. Powell, Jr., Andalusia, for appellant.

Tipler & Fuller, Andalusia, for appellee.

LIVINGSTON, Chief Justice.

This appeal is from a judgment for the plaintiff, Ruby Mae Lawson, Administratrix, in the sum of $4,500 against the defendant, Rebecca Turner Rosen, for personal injury sustained in an automobile collision between an automobile driven by Olin Lawson, deceased husband of the plaintiff, and an automobile driven by the defendant, Rebecca Turner Rosen. Olin Lawson was the original plaintiff; but before trial of the case he died and the cause was revived by his widow as administratrix of his estate.

The complaint contains two counts. Count One is a simple negligence count, and Count Two is a wanton count. The defendant filed pleadings in short by consent.

Appellant was driving her automobile east on Church Street in Andalusia. She testified that she was driving at a speed of approximately 25 miles per hour. She was driving toward the intersection of Church Street and Opp Avenue where the collision occurred. Olin Lawson was driving south on Opp Avenue. Church Street is a through street and Lawson had to stop for a stop sign at the intersection. As the appellant approached the intersection, Lawson started across the intersection. The appellant applied her brakes and skidded 45 feet before impact with the Lawson automobile, at the south-west corner of the intersection. The front of the Lawson car was in the south lane of Church Street when the collision occurred.

A Highway Patrolman, G. J. Ward, was called to investigate the accident. He was called because Lawson was a deputy sheriff and a county vehicle was involved. Ward testified that there were 45 feet of skid marks by the Rosen automobile and that in his opinion she was traveling 45 miles per hour.

The only eyewitness to the accident, other than the occupants of the automobiles, was Harvey Wilson. He testified that Lawson stopped at the intersection and then proceeded across. He also testified that in his opinion the Rosen car was traveling 45 or 50 miles per hour. There was also testimony by a pedestrian that the Rosen automobile was only traveling 25 miles per hour one block before the accident and at the time of the collision.

Mr. Lawson was taken to a hospital and remained there for five days. Dr. Evers, the attending physician, testified that while Lawson was in the hospital he admitted to him that the accident was his (Lawson's) fault. Lawson complained of pain in his back then and after he was released. Mrs. Lawson testified that he complained of pain in his chest and back until his death. His death was from causes other than the injuries received in the accident.

Upon conclusion of the testimony, the court refused to give the affirmative charge, with and without hypothesis, for the defendant as to both counts. The case was submitted to the jury on both counts and a general verdict was returned in favor of plaintiff in amount of $4500. Defendant filed motion for a new trial, which was denied.

Appellant's assignment of error No. 5 raises the point that the trial court, over seasonable objection, permitted the witness, G. J. Ward, the patrolman, to testify as to his best judgment of the speed of the Rosen automobile. The question was as follows:

'Q. From the skid marks that you saw there, from the point of impact, from the damage to the vehicles, do you have a judgment as to the speed of the Cadillac (Rosen) automobile just before the wreck?'

Ward answered that in his best estimate the speed was 45 miles per hour. The appellant contends that Ward was asked to express an opinion as to the speed on the basis of skid marks From the point of impact, such testimony being inadmissible under the rule set out in Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167.

In the instant case, the only skid marks that were ever referred to were those made before the vehicles collided. From a reading of the complete question, it is obvious that the word 'from' preceding the words 'the point of impact' and the words 'the damage to the vehicles' is used conjunctively. Ward was asked to give his best estimate of the speed based on the three factors given in the question. The only skid marks testified to that could be considered were those made before impact. It is well settled that one shown to be an expert may testify as to his judgment as to the speed of an automobile predicated on skid marks made before impact. Jowers v. Dauphin,supra; Johnson v. Battles, 255 Ala. 624, 52 So.2d 702; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469. The skid marks before impact, the point of impact, and the damage to the vehicles were factors upon which an expert could validly predicate his opinion as to speed. Stanley v. Hayes, 276 Ala. 532, 165 So.2d 84. Appellant cites the case of McQuinn v. City of Guntersville, 277 Ala. 328, 169 So.2d 771, to support the proposition that the word 'from' means 'after.' The McQuinn case is not applicable to this situation, in that the word 'from' in that case was used in a lease agreement to denote when a period of time should begin, not as a conjunction. There was no error committed in overruling the objection to the question.

Assignment of error No. 8 relates to the action of the trial court in permitting the witness, Ruby Mae Lawson, to testify, over objection of attorney for defendant, to the effect that as long as Olin Lawson lived after the accident occurred he never told her that the accident was his fault. Appellant's objection to this testimony only went to the weight of the testimony and not to its admissibility. Since Mrs. Lawson was with her husband a great deal of the time he was in the hospital, it is probable that she would have heard the admission to the doctor. Where her situation was such that it is probable that she would have heard the conversation between her husband and the doctor, her ignorance of the admission is competent evidence. Blakey v. Blakey, 33 Ala. 611; Planters' Chemical & Oil Co. v. Stearnes, 189 Ala. 503, 66 So. 699; Nelson v. Iverson, 24 Ala. 9. The weight that was to be given the positive testimony (admission to the doctor) and the negative testimony (Mrs. Lawson's ignorance of the admission) was a question for the jury. The testimony was admissible to refute that of Dr. Evers in respect to whether or not the alleged admission was made. The trial court carefully excluded any declaration of Olin Lawson to Mrs. Lawson that the accident was not his fault.

Appellant also contends that it was reversible error to allow Mrs. Lawson to testify as to a conversation between Mr. Lawson and Dr. Evers about Lawson's physical condition while Lawson was in the hospital. The testimony was inadmissible as it was hearsay, but as the purpose of the testimony was only to show the physical condition of Lawson when he left the hospital, there was only error without injury as there was other testimony to show his physical condition. This Court will not reverse a judgment on appeal for any error unless it should appear that the error complained of has probably injuriously affected substantial rights of the parties. Supreme Court Rule 45.

Assignments of error 11, 12 and 13 raise the point...