Smith v. Johnson
| Decision Date | 17 October 1968 |
| Docket Number | 7 Div. 793 |
| Citation | 283 Ala. 151,214 So.2d 846 |
| Parties | Owen M. SMITH v. Drue Edward JOHNSON et al. |
| Court | Alabama Supreme Court |
Walter I. Barnes, Gadsden, and T. J. Carnes, Albertville, for appellant.
Dortch, Allen, Wright & Wright, Gadsden, for appellees.
Appellant filed suit in the circuit court of Etowah County to recover damages which he alleges proximately resulted from a collision between his automobile, driven at the time by his wife, Opal Jolley Smith, and a truck driven by defendant Johnson, who, according to the allegations, was an agent or servant of defendant Cloud. The complaint, containing only one count, charged the defendants with negligence. The jury returned a verdict for the defendants. Plaintiff appeals.
Appellant complains by assignments of error Nos. 1 and 2 about certain statements in the oral charge of the trial court.
We have examined the record of the oral charge and find that appellant did not sufficiently reserve an exception to the part of the oral charge alluded to in assignment No. 1. The oral charge, although made a part of the record by statute, will not be reviewed here unless adequate exception is reserved. The exception being inadequate, nothing is here presented for review. Accident Indemnity Ins. Co. v. Feely, 279 Ala. 74, 181 So.2d 889(9). An exception designating only the subject treated by the court in an oral charge, or merely designating the beginning of part of the oral charge excepted to, is insufficient. Knowles v. Blue, 209 Ala. 27, 95 So. 481.
In Bean v. Stephens, 208 Ala. 197, 94 So. 173(3), the rule is thus stated:
It was also stated in Pollard v. Rogers, 234 Ala. 92, 173 So. 881(6, 7), as follows:
Appellant, in the instant case, in excepting, merely referred to the beginning and ending of what the court said. This manner of excepting does not meet the requirements of law. See, 2 Ala.Dig., Appeal & Error, k273(6), p. 631.
The basis of appellant's assignment of error No. 2 is the court's oral charge to the jury as follows:
'And the driver of any motor truck, when traveling upon a highway outside of a business or residential district, shall not follow another truck within 100 feet, but this shall not be construed to prevent one motor vehicle or any motor vehicle from passing another.'
We presume the trial court was alluding to Title 36, § 15(b), Code 1940, which provides that 'the driver of any motor truck when traveling upon a highway outside of a business or residence district shall not follow another motor truck within one hundred feet, but this shall not be construed to prevent one motor truck overtaking and passing another. * * *' (This section of the Code was later amended to read 'within three hundred feet,' but this amendment does not apply in the instant case which was tried on March 2, 1967, whereas the amendment was approved on September 7, 1967.)
This instruction was irrelevant to the issues in the instant case. Defendants' truck was following plaintiff's automobile, which, in turn, was following another truck. The latter, or front truck, was not involved in the collision, nor was the owner or driver of the front truck made a party to this suit. The car and the last truck collided. The charge was misleading. It was harmless error. Rule 45, Revised Rules of the Supreme Court, 279 Ala. XXI, XLI.
We pause here to say that defendants, with the consent of the plaintiff and with the permission of the court, filed a plea as follows:
'Comes the defendant and for answer to the complaint in this cause, and to each and every count thereof, separately and severally, pleads in short by consent the general issue, with leave to give in evidence any matter which if well pleaded, would be admissible in defense of this action, to have effect as if pleaded; and with leave to the Plaintiff to give in evidence any matter, which if well pleaded, would be admissible in reply to such defensive matter, to have effect as if so pleaded.'
This plea embraced a plea of contributory negligence on the part of plaintiff, which, if sustained by the evidence and believed by the jury, would be a complete defense to the suit.
Appellant asserts in assignment of error No. 3, that the trial court erred in giving, at the instance of defendants, a written charge, as follows:
'I charge you, gentlemen of the jury, that the plea of the general issue interposed by each of the defendants raises the defense that Opal Jolley Smith's own negligence was the sole proximate cause of the damages of which plaintiff complains in this case, and the burden is on the plaintiff to reasonably satisfy you by the evidence that the negligence of Opal Jolley Smith, if any, was not the sole proximate cause of the damages claimed in this case.'
It seems to us that the intended effect of this charge, while misleading and confusing in its phraseology, was to instruct the jury that under the plea of the general issue, the burden was on the plaintiff to prove the allegation of the complaint that defendants were guilty of negligence. The charge should not have been given because of its misleading and confusing tendency. It was subject, however, to an explanatory charge of plaintiff. We will not predicate error to reverse on giving this charge.
Appellant here contends in assignment of error No. 5, that the trial court erred to reverse in giving charge C, which we quote as follows:
'I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that Opal Jolley Smith was guilty of negligence in the least degree which proximately contributed to the damages of which Owen M. Smith complains, then plaintiff cannot recover in this case.'
We advert to Bradley v. Ashworth, 211 Ala. 395, 100 So. 663, where it was held that when the relation of bailor and bailee exists between husband and wife in the use of the husband's automobile, and...
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