Sims v. Struthers

• Decision Date: 25 April 1957
• Docket Number: 3 Div. 760
• Citation: 100 So.2d 23,267 Ala. 80
• Parties: Clifford SIMS v. James Oscar STRUTHERS and Thomas W. Weaver, Jr., d/b/a Weaver Paper Co.
• Court: Alabama Supreme Court

Page 23

100 So.2d 23

267 Ala. 80

Clifford SIMS v. James Oscar STRUTHERS and Thomas W. Weaver, Jr., d/b/a Weaver Paper Co.

3 Div. 760.

Supreme Court of Alabama.

April 25, 1957.

Rehearing Denied Jan. 23, 1958.

Rogers, Howard & Redden, Birmingham, for appellant.

Rushton, Stakely & Johnston, Montgomery, for appellee Weaver.

Hill, Hill, Stovall & Carter, Montgomery, for appellee Struthers.

SIMPSON, Justice.

This was an action for personal injuries sustained by the plaintiff when the wagon he was driving was struck by an automobile driven by defendant Struthers, an employee of defendant Weaver. The jury returned a verdict for the defendants, and plaintiff brings this appeal.

The case went to the jury on a simple negligence count. The defendants pleaded the general issue in short by consent and defended on the ground of sudden emergency contending that the accident was caused by the negligence of a third party driving another vehicle rather than negligence of defendant Struthers.

It is argued by appellant that the verdict of the jury was contrary to the great weight of the evidence and that, therefore, the trial court erred in overruling his motion for a new trial. The evidence was in conflict. Appellant did not testify. Briefly stated, the evidence disclosed that the appellant, a negro convict, was driving a prison wagon along a public highway and a state prison truck approached the wagon from the rear. The automobile driven by appellee Struthers was travelling in the same direction in the rear of the prison truck and wagon. There is a conflict as to which vehicle attempted to pass the wagon first. Appellee Struthers testified that he attempted to pass both the truck and the wagon, but when he was abreast of the truck, the truck suddenly pulled out too attempting to pass the wagon, causing him to cut sharply to his right in order to avoid colliding with the truck. When this occurred, he ran into the wagon on which the appellant was riding thus causing the accident. Appellant, however, relying on his witnesses, contends that the truck had already passed the wagon and that appellee Struthers ran into him from the rear. It is clear that this conflict in the evidence made it a jury question as to who was at fault. There was evidence to support the verdict returned, so we cannot say that the conclusion reached by the jury was manifestly wrong and unjust. Davis v. Radney, 251 Ala. 629, 38 So.2d 867; Cobb v. Malone, 92 Ala. 630, 9 So. 738; Howell v. Greyhound Corp., 257 Ala. 492, 59 So.2d 587.

It is next argued that the trial court erred in refusing to propound to the jurors several questions requested by appellant relative to their interest or employment in a liability insurance company. The court did, however, in qualifying the jury, ask them if any of the jurors worked for or owned stock in the company supposed to be holding the coverage on the defendant's automobile. Section 52, Title 30, Code of 1940, confers on the parties the right, under direction of the court, within reasonable bounds, to examine jurors touching matters which might tend to affect their verdict, but it does not empower the party to require the court to put such questions to the jury. Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 63 So.2d 895; Cox v. Roberts, 248 Ala. 372, 27 So.2d 617.

It, of course, is the right of the plaintiff to ascertain whether insurance is involved in the case when the jurors are being qualified and the duty devolves upon the court to determine that the jury is qualified, but that duty ends after the court has so qualified them. Duke v. Gaines, 224 Ala. 519, 140 So. 600; Avery Freight Lines v. Stewart, supra; Leach v. State, 245 Ala. 539, 18 So.2d 289; § 6, Title 30, Code of 1940.

It is the rule of our cases that the limit of voir dire examination is left much to the discretion of the trial court, and we do not think that the circumstances here show an abuse of that discretion. Counsel for appellant propounded several questions to the prospective jurors on various subjects, but made no attempt to propound to them questions relative to the insurance which they asked the court to propound after the court had refused to ask the jurors the state questions. Logan v. State, 251 Ala. 441, 37 So.2d 753; Leath v. Smith, 240 Ala. 639, 200 So. 623; Louisville & N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695; Rose v. Magro, 220 Ala. 120, 124 So. 296.

The action of the trial court in overruling the defendant's objection to the question asked of one of his witnesses on cross-examination: 'You didn't see anything he [Struthers] did reckless when you saw him in the mirror or any other time, did you?' is also argued as reversible error. Under the wide latitude rule of cross-examination, the extent of which rests largely within the discretion of the trial court, we cannot say that the discretion was abused or that prejudicial error intervened by the stated ruling. For supportive cases see Howell v. Greyhound Corp., 257 Ala. 492, 59 Ao.2d 587; Bates v. Chilton County, 244 Ala. 297, 13 So.2d 186; Davis v. Radney, supra.

Appellant next contends that the trial court erred in overruling his objection to a question propounded by appellees' counsel to a highway patrolman testifying for appellant. The question was: 'And generally if there are skid marks you note them, don't you?' We likewise view this ruling as without error. Cross-examination as to habits is permissible to test the truth of the testimony of the witness as to his conduct on a specific occasion. Louisville & N. R. Co. v. Bizzell, 131 Ala. 429, 30 So. 777; Pilot Life Ins. Co. of Greensboro, N. C. v. Hawkins, 222 Ala. 218, 131 So. 889; McElroy, The Law of Evidence in Alabama, p. 15, §§ 42 & 43.

Appellant contends that the trial court erred in admitting into evidence a part of an accident report prepared by the highway patrolman who investigated the accident. It appears from the record that the report was prepared by the patrolman from his personal observation and from what the drivers of the vehicles told him. Following is a fair interpretation of the record: James A. Parker, a member of the Alabama Highway Patrol, called as a witness by the plaintiff, testified on direct examination to facts indicating inferentially that he went to the place of the accident in suit within a few minutes after the accident occurred; that he found skid marks of approximately fifty feet in length in the area in which he found the debris of the accident-the implication of his testimony with respect to such finding being that such skid marks were made by defendant Struthers' automobile.

On Struthers' cross-examination of Patrolman Parker, the latter was asked, 'You mentioned tire marks. You did not note them on the Highway Patrol Report did you, skid marks?'. Parker answered, 'I don't believe I did'. Patrolman Parker further testified on cross-examination that a document then and there exhibited to him was a copy (which we assume, in accordance with usual practice was a photostatic copy) of his Highway Patrol Report of the Accident in suit; that a diagram of the accident contained in such report, was based both on (a) 'physical evidence' (which we understand to mean mechanical traces of the accident observed by Parker after he arrived at the place thereof), and (b) statements made to him by Struthers and the driver of the state prison truck; that if there were skid marks at the place of an accident, he generally made a note of the skid marks in his report of the accident; and that skid marks or tire marks would 'throw some light on the way a motor vehicle was travelling.'

The diagram, so far as is here material, purported to depict the respective positions of the wagon, the state prison truck and Struthers' automobile at the instant of the collision; the course of Struthers' automobile from the time of its approach to the state prison truck and the wagon to and including the instant of the collision; but it contained no indication of skid marks at the place of the accident.

Struthers offered in evidence that part of the copy of Patrolman Parker's Highway Patrol Report which contained the diagram--the material terms of the offer being 'we (i. e., defendant Struthers) introduce in evidence the diagram made by Mr. Parker * * *' '* * * to impeach him.' (Tr. p. 55). We interpret 'him' as last quoted to mean Patrolman Parker. Plaintiff objected on the grounds that the diagram was hearsay, a conclusion, did not represent any facts that Patrolman Parker found when he arrived at the place of the accident, and 'that no proper predicate was laid.' The trial court overruled the objection and admitted the diagram. The plaintiff excepted. Plaintiff here complains that the trial court's admission of the diagram was erroneous, and was prejudicial to plaintiff.

We entertain the view that the ruling of the trial court was without error.

First, Patrolman Parker's failure to indicate skid marks on the diagram was materially inconsistent with his testimony that skid marks were in the area in which he found the debris of the accident, which testimony, as noted above, impliedly indicated that such skid marks were made by Struthers' automobile. It should be here noted that Parker had not testified unqualifiedly that he made no note of skid marks on the diagram; he had merely stated that he 'didn't believe' he had made such a note. Holland v. State, 25 Ala.App. 147, 142 So. 112, syl. 2-3; Marsh v. State, 16 Ala.App. 597, 80 So. 171, syl. 3, certiorari denied Ex parte Marsh, 203 Ala. 699, 83 So. 927; Schroeder v. State, 17 Ala.App. 246, 84 So. 309, syl. 1; Penney v. McCauley, 3 Ala.App. 497, syl. 5, 57 So. 510, syl. 5; Wefel v. Stillman, 151 Ala. 249, syl. 17, 44 So. 203, syl. 17; Bice v. Steverson, 205 Ala. 576, 88 So. 753, syl. 14; Mobile Light & R. Co. v. Ellis, 209 Ala. 580, 96 So. 773, syl. 11; Gulf, C. & S. F. R. Co. v. Matthews, 100 Tex. 63, 93 S.W. 1068, 1070; 70 C.J. pp. 771, 813-814,...