Stegall v. Wylie
| Decision Date | 26 April 1973 |
| Parties | Terry STEGALL, a four year old minor, who sues by his father and next friend, William O. Stegall v. Odias A. WYLIE. SC 88. |
| Court | Alabama Supreme Court |
Potts & Young, Florence, for appellant.
Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellee.
Terry Stegall, a four year old, suing by his father and next friend, William O. Stegall, filed a suit against Odias A. Wylie. The complaint sought damages for injuries suffered by Terry when struck by an automobile driven by Wylie.
The jury trial resulted in a verdict and judgment in favor of the defendant Wylie. The plaintiff's motion for a new trial being overruled, an appeal was perfected to this court.
Since the parties occupy the same positions on appeal as they did in the court below, we will refer to them in this appeal as 'plaintiff' and 'defendant' rather than 'appellant' and 'appellee.'
The evidence presented below is relatively free of contradictions.
The evidence presented by the plaintiff tended to show that Terry had run away from home. His mother, carrying another small child in her arms, went in search of Terry. She was accompanied by a friend, Mrs. Marie Haddock. Mrs. Haddock was likewise accompanied by three of her smaller children. As the group reached Sweetwater Avenue, Mrs. Haddock saw Terry. 'It looked like he was coming from behind some houses.' He began running and both she and Mrs. Haddock 'hollered' at him to get out of the street. However, according to Mrs. Haddock, Terry left the sidewalk and ran almost across the street, and then turned and ran back, and the Wylie automobile hit him. Wylie's automobile was traveling in the same direction on Sweetwater Avenue as were Mrs. Haddock and Mrs. Stegall. Mrs. Stegall did not see Wylie's automobile until just before it hit Terry. While she did not know the speed at which it had been traveling before she observed it, the automobile from the time she observed it until it struck Terry, was going 'real slow.'
The plaintiff read the deposition of the defendant to the jury, other than certain questions and answers excluded by the court at a pretrial hearing. In this deposition, Wylie deposed that at the time of the accident he was going from his home on Sweetwater Avenue to get some soft drinks. He had gone about a block along Sweetwater Avenue when the accident occurred. He had driven along Sweetwater Avenue at a speed of between 10 and 12 miles per hour. He saw some people on the sidewalk on his right hand side and was looking in that direction. Suddenly the plaintiff 'came flying out of the driveway' and into the path of his automobile. He applied his brakes and 'stopped on a dime.' The plaintiff was struck by the right front of his automobile. Mr. Wylie testified that he does not drink intoxicating beverages, nor take 'pep' pills, and had 'not taken any kind of pills or anything' at the time of the accident.
For the defense Lillian Fuller testified that her house is just a little south of the scene of the accident which she witnessed from her front door. She saw some children on the sidewalk next to her house. Terry was just behind this group of children and all at once he made a dash into the street, 'he just run into the side of the front end of the car.' Terry appeared to be scared at the time. Wylie's automobile was going very slow at the time, and Terry was under the middle of the car when it stopped.
Ray Linwood Carpenter, as a witness for the defense, testified that he had been working on the roof of a house near the scene of the accident. He was resting at the time of the accident and saw it from his roof top location. He testified that all at once Terry 'just run into the car' which was proceeding at about 12 to 15 miles per hour. Mr. Carpenter administered mouth-to-mouth resusitation to Terry after he was removed from under the automobile.
Terry received a fractured skull from the accident, and other injuries. In view of the verdict and judgment for the defendant, we see no need to discuss Terry's injuries.
The defendant did not testify in the trial below but, as before stated, the unexcluded parts of defendant's deposition were read to the jury by the plaintiff, who had taken the deposition.
From a reading of all the testimony, it would appear that the only variation in the evidence by either side is that while all of the witnesses to the accident, other than Mrs. Haddock, testified that Terry had suddenly run into the street from the sidewalk before being struck by the automobile, Mrs. Haddock testified that Terry had run almost across Sweetwater Avenue, and then had turned and run back across the avenue before being struck.
Assignment of error No. 10 asserts error because of the action of the court in granting defendant's motion to exclude all of the answers of the defendant but the word 'yes' as it appears in the following answer in the deposition:
(Emphasized portion of answer excluded.)
The argument of the plaintiff in support of this assignment is that although the rule is that ordinarily one cannot prove by a witness on direct examination what were his motives, fears, or other mental operations, on cross examination a witness may be asked his reasons for certain of his acts, and his motive and intention in respect to such acts. Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334.
Plaintiff contends that an opponent-interrogatee is in the same position as a witness on cross examination insofar as being questioned as to his intent, mental operation, etc. This for the reason that an opponent-interrogatee certainly should not be able to complain that his own testimony is so unreliable as to stand in need of contradiction by others. Such view receives the strong approval of Judge McElroy in his work, The Law of Evidence in Alabama. See Vol. 3, Sec. 290.01, (9)(a).
A reason often assigned as a basis for our so-called Rule of Exclusion is that one's subjective intent is insusceptible of contradiction. Our Rule of Exclusion is to the effect that the uncommunicated intention or mental operation of a party is an inference to be drawn from facts, and not from the testimony of a witness as to such intent or mental operation, even though such state of mind be material to the issues.
A basis often assigned as supportive of the rule is that one's subjective intent is insusceptible of contradiction. Such reason ignores Justice Holmes' observation that one's state of mind is as much a fact as is the state of his digestion.
This rule prevails in no other jurisdiction. Unworkable since its origin, the rule is now so glossed by exceptions, many being attempted distinctions without any real differences, that its application is impossible with any degree of certitude.
This rule has been the subject of much critical discussion, and I see no reason to again reiterate these criticisms, but refer those interested to a thorough analysis of the rule by Judge McElroy in his article in 1 Alabama Lawyer 221; Wigmore on Evidence, 3rd Ed.Sec.1960, and the dissenting opinion of the late Chief Justice Livingston in McGuff v. State, 248 Ala. 259, 27 So.2d 241. In Conrad v. Conrad, 275 Ala. 202, 153 So.2d 635, in a special concurring opinion, this writer expressed the view that our Rule of Exclusion was nothing more than a jurisprudential will o' the wisp whose evanescent light served only to lead lower courts into the mire of reversal, and that it should be totally extirpated. He was joined in this view by the late Chief Justice Livingston.
We see no need, however, in this case to venture into the mystic maze of our Rule of Exclusion, for in our opinion the plaintiff could not be deemed to have probably suffered any injury to his substantial rights by the ruling in this instance.
In the depositional testimony which was admitted in evidence, the defendant testified that before reaching the scene of the accident he had driven about a block along Sweetwater Avenue and had passed a blinking caution light when he saw some people on the sidewalk, perhaps six or seven. He proceeded on about a hundred feet, and was looking to his right, but he did not see Terry until he got upon him--'he spied his mother and ran like a bullet out in the road.'
Thus the defendant's testimony which was permitted was amply sufficient for the jury to have concluded and inferred without the excluded testimony that the defendant had seen people and children on the sidewalk, and that he was looking to his right (toward the sidewalk) as he proceeded on.
We hold that no error sufficient to cause a reversal on the lower court resulted from the exclusion of that part of the answer as shown above. Supreme Court Rule 45.
Plaintiff's assignment of error No. 1 is that the court erred in overruling his motion for a new trial. Under this assignment, the plaintiff has brought forward three grounds of his motion for a new trial, namely grounds 2, 3, and 5.
Ground 2 of the motion for a new trial was to the effect that the court erred in excluding the following question and answer propounded by the plaintiff to the defendant in the deposition.
Plaintiff premises his argument on the basis that the defendant-interrogatee is in the same position as an opponent on cross examination, and therefore it was proper to question him as to the reason why he hit Terry. See Armour & Co., et al. v. Cartledge, 234 Ala. 644, 176 So. 334.
...
To continue reading
Request your trial
-
Starr v. Starr
...court have also taken the so-called 'rule of exclusion' to task. Justice Harwood said this about it in his opinion in Stegall v. Wylie, 291 Ala. 1, 277 So.2d 85 (1973): 'This rule prevails in no other jurisdiction. Unworkable since its origin, the rule is now so glossed by exceptions, many ......