Smith v. Baggett

• Decision Date: 21 June 1928
• Docket Number: 6 Div. 965
• Parties: SMITH v. BAGGETT.
• Court: Alabama Supreme Court

118 So. 283

218 Ala. 227

SMITH v. BAGGETT.

6 Div. 965

Supreme Court of Alabama

June 21, 1928

Rehearing Denied Oct. 25, 1928

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages by John Smith against J.D. Baggett. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Refusal to permit counsel to comment in argument as to defendant's indemnity insurance evidence of which was received without objection held not reversible error.

The complaint charges that, while plaintiff was riding in a public highway in the city of Birmingham, at a place where he had a right to be and was not a trespasser, an automobile collided with the automobile in which he was riding, greatly damaging his said automobile, etc., and injuring plaintiff and avers that the injuries sustained were proximately caused by the negligence of defendant in negligently causing said automobiles to collide. The complaint was amended by adding counts charging subsequent negligence and wanton negligence.

Plea 3 is as follows:

"For further answer to said count this defendant says that the plaintiff ought not to recover in this case, for that on the occasion complained of the plaintiff was himself guilty of negligence proximately contributing to his alleged injuries and damages, in this, that the plaintiff was operating his said automobile, in which he was riding, west on Highland avenue, and drove and operated his said automobile into the intersection of Highland avenue and Twenty-First Street South at a rate of speed in excess of 12 miles per hour, and defendant avers that plaintiff's so driving his said automobile into and on said intersection at which intersection automobile so driven by plaintiff and defendant's automobile collided at a rate of speed in excess of 12 miles per hour on said occasion proximately contributed to the plaintiff's said alleged injuries and damages; hence the plaintiff ought not to recover in this suit."

The following charges, made, respectively, the basis of assignments of error 14, 15, and 16, were given at defendant's request:

"(3) I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence in this case that the plaintiff, John Smith, drove or operated his automobile into or upon the intersection of Highland avenue and Twenty-First street at a rate of speed in excess of 12 miles per hour, then I charge you he was guilty of negligence as a matter of law.

"(4) I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence in this case that the plaintiff's alleged injuries and damages were the proximate result of a mere accident on the occasion complained of, then your verdict must be for the defendant.

"(5) I charge you, gentlemen of the jury, the plaintiff is not entitled to recover in this case any damages for and on account of any personal injuries, loss of time as claimed in his complaint."

In argument to the jury, counsel for plaintiff made the following remark:

"He (defendant's counsel) is willing to let evidence come in without objection that there was an insurance company involved."

Defendant objected to the argument. The court sustained the objection and excluded the argument. Defendant's counsel in argument to the jury said:

"He waits until the case is through and puts in a wanton count. *** We had a right to continue the case when he put that in (referring to the amendment of plaintiff's complaint)."

Thereafter counsel made the following remark, which is made the basis of the ninth assignment of error:

"I think that (referring to plaintiff's amendment to complaint) was a stratagem to try to get me to move for a continuance, because he didn't want to try this case before this jury."

Plaintiff after objection was sustained, moved the court to instruct the jury that said remarks "were highly improper and prejudicial to the plaintiff, and they ought not to consider it in any manner whatsoever." The court stated: "The court has ruled," and plaintiff objected to the refusal of the court "to so instruct the jury."

W.A. Denson, of Birmingham, for appellant.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, and Brewer Dixon, of Talladega, for appellee.

ANDERSON C.J.

The third plea was not subject to the plaintiff's demurrer thereto. While it could have specifically charged that the rate of speed was in violation of the city ordinance, yet this court must take judicial notice of the ordinances of the city of Birmingham and the rate of speed there set up was in violation of an ordinance of said city. Acts 1915, p. 297, § 7; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387. Nor did the plea have to aver that the plaintiff negligently operated the car at the rate of speed set up as the rate set out was in violation of the ordinance and was negligence per se. City Ice Delivery Co. v. Lecari, 210 Ala. 629, 98 So. 901; Hill v. Condon, 14 Ala.App. 332, 70 So. 208. We think the plea also shows that the plaintiff's car was going at a rate of speed in violation of the ordinance when the collision occurred.

There was no reversible error in giving the defendant's charge made the basis of the fifteenth assignment of error. Norwood Co. v. Crossett, 207 Ala. 222, 92 So. 461; Montevalloe Co. v. Little, 208 Ala. 131, 93 So. 873; City Ice Co. v. Lecari, 210 Ala. 629, 98 So. 901. While there has been considerable wabbling on the part of the court as to charges of the character as embodied in assignment of error 15, we find no case holding that the giving of such a charge was reversible error; nor do we find one holding that the refusal of such a charge would be reversible error, unless it be the case of Norwood v Crossett, 207 Ala. 222, 92 So. 461, where a bare majority of the court thought it a good charge, but justified the...