State Realty Co. v. Ligon

• Decision Date: 17 January 1929
• Docket Number: 1 Div. 514
• Citation: 119 So. 672,218 Ala. 541
• Parties: STATE REALTY CO. v. LIGON.
• Court: Alabama Supreme Court

119 So. 672

218 Ala. 541

STATE REALTY CO. v. LIGON.

1 Div. 514

Supreme Court of Alabama

January 17, 1929

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action for damages for personal injuries by Ellen B. Ligon against the State Realty Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Inge &amp Bates, of Mobile, for appellant.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellee.

BOULDIN J.

Dr Ellen B. Ligon sues the State Realty Company for personal injuries, due to the negligent operation of a passenger elevator in defendant's office building in Mobile.

Count 1 charges the defendant "maintained and operated an elevator therein for the purpose of transporting tenants and other parties going to and from offices located on the upper floors of the said building." There is no averment that the plaintiff was at the time a tenant or party going to or from an office on an upper floor. Without more, the complaint would fail to show plaintiff was within the class to whom the duty of care was upon defendant.

But the count further avers: "It was the duty of said defendant to have the elevator remain stationary until the plaintiff and other passengers entering said elevator had completed their entrance into same"--and in breach of this duty, and while the elevator had stopped at the ground floor to receive passengers, and the door was open for the purpose, and plaintiff was in the act of entering the elevator as a passenger, having one foot in the elevator and one on the floor, the servant of defendant suddenly and negligently, without warning, started the elevator upward, inflicting the personal injury complained of.

Under our rules of pleading, these averments sufficiently show the relation of passenger, the duty arising therefrom, and a breach of such duty. They impose upon the plaintiff the burden of proving that she was of the class to whom the initial duty of care was sustained; no question of wantonness nor negligence after discovery of peril appearing. Armstrong v. Montgomery St. R. Co., 123 Ala. 233, 26 So. 349.

Without conflict the evidence showed the plaintiff was a tenant, having her offices on an upper floor, and had been for some years, a fact known, as of course, to the defendant at the time. In such case, when the complaint charges negligence and causal connection with the injury, but is defective merely for generality of averment in the nature of a conclusion of the pleader, error in overruling a demurrer is not ground for reversal. American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507.

The plaintiff was 65 years of age; weighed some 150 pounds; as she entered the elevator, the right foot being inside, with the left on the floor outside, the elevator started upward; in the moment of surprise and shock she could not enter nor withdraw; the elevator ascended, plaintiff remaining in this precarious position, to a height variously estimated at 2 1/2 feet to 5 feet, when she was rescued by Mr. Vanderslice, who happened to be near.

The negligence of the elevator girl is not questioned. The controverted issue was as to the fact and extent of plaintiff's injury. On this inquiry, much expert testimony from physicians and surgeons was introduced, and some testimony of nonexperts.

The serious results claimed by plaintiff were not due to external injury, but to shock and strain, causing permanent ill health and inability to pursue her profession as a physician of the osteopathic school. The professional opinion evidence is not without variance as to the cause and extent of her subsequent suffering and debility.

During the progress of the case the trial judge refused to permit or hear objections to evidence interposed by associate counsel for defendant, holding that all objections to evidence offered by plaintiff must come through leading counsel, who examined and cross-examined the witnesses. On declining to hear or pass upon an objection interposed by associate counsel, both leading and associate counsel asked permission for the latter to note objections. This was denied, and defendant reserved exception.

This question was fully considered in the recent case of McKinley v. Campbell, 217 Ala. 139, 115 So. 98. Speaking through Mr. Justice Somerville, this court said: "Parties have a constitutional right to be heard by counsel (Const.Ala.1901, § 10), and this right cannot be restricted to representation by a single individual. The Legislature and the court itself may, of course, impose reasonable regulations upon the cumulative functioning of counsel in the conduct of a trial, but cannot properly suppress the timely and appropriate action of any individual counsel acting alone--without duplication--in the particular matter." On rehearing, the court expressly held that rule 18, providing only one counsel on each side shall examine a witness, has no application.

Section 10 of the Constitution, part of the Bill of Rights, guarantees the right to be heard by counsel in civil cases, as does section 6 in criminal cases. Baumier v. Antiau, 65 Mich. 31, 31 N.W. 888, fully supports the rule announced by this court. Said the Michigan court:

"If a party has the right to employ more than one counsel upon the trial of an issue of fact, which cannot be doubted, we think an arrangement by which one counsel examines the witness, while the other watches out for the legality of the admission or rejection of the proposed testimony, not only a desirable and advantageous one for the party, but a matter of right, which no court can take away from him unless the privilege is abused. Mr. Whitman had a clear right to make objections, and to move to strike out testimony, and to argue his objections and motions if argument was needed or desired. The court, in his discretion, would have had the undoubted right to limit the argument upon these questions to one counsel upon a side, but he could not require that the counsel who was examining the witness in chief should alone make objections or motions and argue them. The counsel examining a witness, with his mind constantly on the alert and turned towards the questions he was asking, and the answers thereto, would not be so apt to catch

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