Smith v. Clements

• Decision Date: 11 February 1970
• Docket Number: 1 Div. 14
• Citation: 45 Ala.App. 435,231 So.2d 759
• Parties: Charles E. SMITH and Winston Earl Smith as Co-executors Under the Last Will and Testament of John E. Smith, Deceased v. Catherine CLEMENTS.
• Court: Alabama Court of Civil Appeals

Page 759

231 So.2d 759

45 Ala.App. 435

Charles E. SMITH and Winston Earl Smith as Co-executors Under the Last Will and Testament of John E. Smith, Deceased v. Catherine CLEMENTS.

1 Div. 14.

Court of Civil Appeals of Alabama.

Feb. 11, 1970.

J. Connor Owens, Jr., Bay Minette, for appellants.

Kenneth Cooper, Bay Minette, for appellee.

WRIGHT, Judge.

This matter arose out of a suit in detinue filed by the co-executors of the estate of John D. Smith against appellee, Catherine Clements. Prior, or during trial by jury, all items of property originally included in the suit were struck by plaintiffs, except a 1966 Plymouth Station Wagon. Defendant executed a replevin bond and kept possession of the vehicle. Demurrer was filed. No ruling appears of record. An instrument headed 'ANSWER' was filed by defendant saying,

'1. Not guilty.

'2. General issue.'

This was in fact, plea rather than answer. The instrument further averred that the automobile claimed by plaintiffs was the property of defendant, having been given to her by her brother, John Ed Smith, prior to his death, and that it had been in her control since the time of the gift.

With issue joined, trial began. In brief, the evidence of plaintiffs, appellants here, was that the testator, John Ed Smith, purchased the automobile some three months prior to his death. A check for the purchase signed by the deceased was introduced, together with a bill of sale made out to deceased. Properly certified copies of the will and letters testamentary issued to plaintiffs were accepted in evidence. Testimony as to alternate value of the vehicle was presented, and plaintiffs rested.

Appellee's evidence was to the effect that shortly after purchase of the station wagon, the deceased became unable to drive, and that defendant was given possession of the car. She used it to drive the deceased and run errands for him. That shortly before his death, deceased gave her the second set of keys, and made the statement that he would not be able to drive any more, and that he wanted defendant to have the station wagon if anything happened to him. There were several witnesses who testified to having heard this, and similar statements by the deceased, John Ed Smith.

Mr. Smith died on June 29, 1969. Plaintiffs are his sons, and defendant his sister.

When plaintiffs and defendant rested the following occurred:

'THE COURT: Give me the general charge and we will find (sic) this up.

'MR. OWENS: May it please the Court * * *

'THE COURT: I am going to give the general charge to the jury; a man has a right to give property away and if you bring people in here that says that he gave it to her, there is nothing anybody could do but give it to her--

'MR. OWENS: I take exception to the Court's statement.

'ORAL CHARGE OF THE COURT:

'LADIES AND GENTLEMEN OF THE JURY: I am giving you what is known as the General Charge which states: If you believe the evidence in this case your verdict must be for the defendant in this case, or that you can not find for the Plaintiff. The law is very clear; if it were real estate it is different, but personal property you can make a gift by handing it to a person; you don't have to sign a bill of sale. She could not testify that her brother gave her something with him dead, because the law says that a person interested in a transaction can't testify to a transaction with a dead man, but when she brought witnesses that said this man gave her the car, if you believe them there is nothing you can do but find for her.

'MR. OWEN: I would like to except to that part of the charge--

'THE COURT: Except to the whole thing.

'MR. OWENS: I don't know whether that is good or not.

'THE COURT: I think that when I give this you are protected if I am wrong; there is no need of wasting tiem when I know what I am going to do.

'THE COURT: Give me the Complaint--I will read this charge to you: The Court charges you gentlemen of the jury if you believe the evidence in this case you must find for the defendant, Catherine Clements. When the Clerk gets back with the complaint, if you agree with me, let one of your number write on the back of the Complaint: We the jury find for the defendant, and sign it as foreman.'

The record indicates that after the above action and remarks by the court, a verdict was returned for defendant. The case was not argued by counsel, nor were any further instructions, written or oral, given by the court.

This appeal is brought upon 3 assignments of error. 1. That the trial court erred in giving the affirmative charge with hypothesis in favor of defendant. 2. That the trial court erred in refusing to give the written requested affirmative charge with hypothesis in favor of plaintiff for the property sued for. 3. That the trial court erred in refusing to give the written requested affirmative charge with hypothesis in favor of plaintiffs for the automobile and its alternate value.

We shall first dispose of Assignments of Error 2 and 3.

It is clear from the record that plaintiffs in this case were not entitled to have given the affirmative charge. 'Where an affirmative charge is refused and party requesting the charge appeals, the entire evidence is viewed in light most favorable to the opposite party and where reasonable inferences may be drawn adverse to party who requested the charge, action of the trial court in refusing the charge must be affirmed.' Adams v. Queen Ins. Co. of America, 264 Ala. 572, 88 So.2d 331; Ala. Power Co. v. Scholz, 283 Ala. 232, 215 So.2d 447; Lankford v. Mong, 283 Ala. 24, 214 So.2d 301.

There is no question that the evidence in this case raised inferences from which a jury could reasonably find that the deceased had made a gift, inter vivos, or causa mortis, of the station wagon to defendant. There was no error in the trial court's refusal to give the written requested charges at the request of appellant as indicated by Assignments of Error 2 and 3.

We come now to Assignment of Error 1. In this instance, the appellant complains of the trial court's doing for the...