Spurlin v. General Motors Corp.

• Decision Date: 10 May 1976
• Docket Number: No. 74--3080,74--3080
• Citation: 531 F.2d 279
• Parties: A. A. SPURLIN, serviving parent of Douglas J. Spurlin, a minor, Deceased, et al., Plaintiffs,-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 279

531 F.2d 279

A. A. SPURLIN, serviving parent of Douglas J. Spurlin, a minor, Deceased, et al., Plaintiffs,-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 74--3080.

United States Court of Appeals Fifth Circuit.

May 10, 1976.

Francis H. Hare, Sr., Birmingham, Ala., H. Carey Walker, Jr., Huntsville, Ala., Truman Hobbs, Montgomery, Ala., for plaintiffs-appellants.

Jerry B. Ange, Ralph H. Ford, Huntsville, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion March 15, 1976, 5 Cir. 1976, 528 F.2d 612)

Before TUTTLE, THORNBERRY and COLEMAN, Circuit Judges.

PER CURIAM:

Upon consideration of General Motors' petition for rehearing, we think it appropriate to add the following to our opinion in this case. First of all, it is true that an appellee is under no obligation to take a cross-appeal if he wishes to offer alternative bases, other than those employed by the district court, to support the judgment entered below. 9 J. Moore, Federal Practice, P204.11(3), at 932. Nevertheless, as we have stated, the appellee in this case based its argument on appeal almost exclusively ¹ on the insufficiency of the evidence to sustain the jury's verdict.

Appellant has, however, drawn the Court's attention to certain evidence excluded by the district court and not previously discussed by us, whose exclusion is argued to have justified the court's grant of judgment n.o.v. and a new trial in the alternative. At trial General Motors attempted to introduce into evidence pleadings from certain adminisrative proceedings before the Alabama Board of Adjustments, which had been filed by some of the plaintiffs in the consolidated cases before us. Those pleadings alleged negligence on the part of the bus driver and the county mechanics who serviced the bus. The district court refused to admit them into evidence, either as admissions against interest or as a complete bar to the present suits, and GM now contends that failure to admit them constituted reversible error. We do not agree. The recent Alabama Supreme Court case upon which appellee relies, Redwing Carriers, Inc. v. Stone, 293 Ala. 726, 310 So.2d 206 (1975), is not controlling on the facts before us. In Redwing, a personal injury suit against the plaintiff's employer, the trial court was found to have committed reversible error in refusing to admit pleadings filed by the plaintiff in a separate suit against another defendant for the same injury. The Alabama Court simply recognized the rule that prior pleadings that are inconsistent with present contentions may be introduced as an admission against interest. The principle is stated in Elder v. Ralls Sanitarium, 219 Ala. 298, 122 So. 41 (1957) which is cited by the Alabama Supreme Court in Redwing Carriers, supra:

'We think the following from 22 Corpus Juris, p. 317 fully answers the appellant's objection:

'Where a party on the trial of an action advances contentions which are inconsistent with his prior conduct in relation to the matter in controversy, such prior conduct may be shown as being in the nature of an admission. . . ." (Emphasis added.)

We conclude that the Alabama Court did not decide that every pleading in any other case filed by a party to the instant suit is admissible. It is only those that are inconsistent with the party's present posture which would be relevant and thus admissible. Here there is no necessary inconsistency. As we noted in our opinion, Alabama law...