Swindall v. Speigner

• Decision Date: 05 September 1968
• Docket Number: 4 Div. 209
• Citation: 214 So.2d 436,283 Ala. 84
• Parties: Oliver Roscoe SWINDALL et al. v. Vinnie Jerkins SPEIGNER, Adm'x.
• Court: Alabama Supreme Court

Page 436

214 So.2d 436

283 Ala. 84

Oliver Roscoe SWINDALL et al. v. Vinnie Jerkins SPEIGNER, Adm'x.

4 Div. 209.

Supreme Court of Alabama.

Sept. 5, 1968.

Rehearing Denied Oct. 10, 1968.

Oliver Brantley, Troy, and Wm. B. Matthews, Ozark, for appellants.

Wm. R. Martin and Chas. Woods, Ozark, Godbold, Hobbs & Copeland and Euel A. Screws, Jr., Montgomery, for appellee.

On Rehearing.

COLEMAN, Justice.

The application for rehearing is granted with respect to Assignment of Error No. 2. The opinion is modified in that the part which related to Assignment 2 is withdrawn, and this opinion is substituted for the original opinion. The opinion is extended to consider additional assignments of error which were not considered on original deliverance.

Defendants appeal from judgment for plaintiff in action for wrongful death of plaintiff's intestate in a motor vehicle collision on a highway. About 7 a.m., during daylight on a clear, dry day, plaintiff's intestate was driving his pickup truck, traveling north, on U.S. 231 at a point near Chism's Truck Stop, which was on the west side of the highway. Defendant Swindall was riding in his automobile traveling south on the same highway meeting intestate's truck. Jimmy Rushing was driving Swindall's automobile. Rushing's administrator is the other defendant.

Plaintiff's intestate made a left turn to drive his truck into the truck stop and the vehicles collided. The investigating State Trooper testified that the width of the highway, where the accident occurred, was twenty-four feet, and that the point of impact was approximately at the center of the west, or southbound, lane about six feet from the extreme west edge of the highway. Both drivers were killed almost instantly.

Plaintiff states in brief that his theory is that wanton driving of Swindall's automobile was established by the circumstances of excessive speed of the automobile in an area congested by a busy business and intersection and dangerous topography such as a blind hill from the north.

Defendant's theory seems to be that the driver of Swindall's automobile was not guilty of either negligent or wanton conduct; that plaintiff's intestate, Jerkins, was guilty of negligence in the operation of his truck; and that Jerkins' own negligence was the proximate cause of his death.

Assignment 10.

Defendants say the court erred in giving plaintiff's requested charge 9 which recites:

'Where the party killed was suddenly placed by the wrong of the defendant in a position of extreme and imminent peril, necessitating to his extrication, quick decision and action on his part, he will not be held to the same correctness of judgment and action as if he had time and opportunity to full(y) consider the situation and to choose the best means of escaping the peril.'

By charge 9, plaintiff sought the benefit of the sudden emergency boctrine. In substance, that doctrine is that one who, without fault on his part, is suddenly and unexpectedly placed in a perilous situation, so as to be compelled to act instantly and without an opportunity for the exercise of deliberate judgment, is not chargeable with negligence if, in attempting to escape from the peril or to minimize the threatened injury, he acts as a person of reasonable prudence would or might have acted in the same or a similar situation. 80 A.L.R.2d 12.

The above stated rule has no application to, and cannot be invoked by, one who wrongfully and voluntarily puts himself in such a position of danger. Pittman v. Calhoun, 231 Ala. 460, 464, 165 So. 391. To like effect are McCauley v. Tennessee Coal, Iron & R. Co., 93 Ala. 356, 360, 9 So. 611; Birmingham Railway, Light & Power Co. v. Fox, 174 Ala. 657, 675, 56 So. 1013; Alabama Co. v. Sanders, 202 Ala. 295, 297, 80 So. 360; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342, 345, 116 So. 334; Hill v. Almon, 224 Ala. 658, 660, 141 So. 625; Alaga Coach Line v. Foy, 227 Ala. 506, 510, 150 So. 493; Clark v. Farmer, 229 Ala. 596, 599, 159 So. 47; Pittman v. Calhoun, 233 Ala. 450, 452, 172 So. 263.

Defendants say charge 9 is bad because it assumes that the party killed was placed in peril 'by the wrong of the defendant,' and thus assumes the existence of a material fact as to which the evidence is in conflict. We do not agree. Charge 9, we think, is the statement of an abstract proposition of law and limits the application of the emergency doctrine to a situation 'Where' the party was placed in peril 'by the wrong of the defendant.' In this respect, we understand the word 'where' to have the same meaning as 'if' or 'when.'

In Pittman v. Calhoun, 231 Ala. 460, 461, 165 So. 391, 392, this court held that charge 6 asserted a sound proposition of law. Charge 6 recited:

"6. When a traveler, without any fault on his part, is placed in a position of imminent peril, the law will not hold him guilty of such negligence as will defeat his recovery if he does not select the very wisest course, and an honest mistake of judgment in such a sudden emergency will not of itself constitute contributory negligence, although another course might have been better and safer."

In charge 6, it was assumed that the traveler was placed in peril 'without any fault on his part.' In Pittman, however, the evidence was in conflict as to whether the plaintiff was placed in a position of peril by his own actions or by the fault of defendant.

We are of opinion that the instant charge 9 is not bad for assuming as true a disputed fact.

Defendants say charge 9 is bad, for a second reason, to wit, because the charge omits to state that plaintiff is not entitled to the benefit of the sudden emergency doctrine if plaintiff, by his own acts, produced the sudden peril.

Charge 9 could have been refused without error for the reason that the charge pretermits freedom from fault in bringing about the sudden peril. See holding as to charge 11 in Alaga Coach Line v. Foy, supra.

This omission, however, did not make giving charge 9 reversible error under the holding in Hill v. Almon, supra. There this court considered an oral charge, on the emergency doctrine, which omitted reference to whether plaintiff, by his acts, produced the sudden peril. This court said that, if the charge were defective for this omission, the defendant should have asked for charges instructing the jury that the plaintiff could not claim the benefit of the emergency doctrine if he, or his agent, brought about the emergency.

Assignment 10 does not show reversible error.

Assignment 2.

On application for rehearing, plaintiff says we erred in holding that giving plaintiff's requested charge 1 was reversible error. Charge 1 recites:

'I charge you that under the law of Alabama Mr. Swindall is liable for the negligence of the driver where (1) the driver was operating the automobile with permission of Mr. Swindall, (2) Mr. Swindall was an occupant of the automobile at the time of the accident, and (3) Mr. Swindall had not abandoned his right to control the automobile or if he exercised or had a right to exercise any control over the driver or the operation of the car or if the ride was for his benefit or the mutual benefit of himself and the driver.'

Defendants say charge 1 is bad for two reasons: (1) because the charge fails to limit Swindall's liability for the driver's negligence to his negligence which was the proximate cause of the injury complained of, and (2) the charge ignores the defense of contributory negligence.

Plaintiff says that giving plaintiff's charge 1 was not reversible error because charge 1 is not an incorrect statement of the law, but, at its worst, is merely incomplete and misleading and could have been cured by an explanatory charge. Plaintiff says further that the court did give other charges which cured the omissions in charge 1 with respect to proximate cause and contributory negligence.

If plaintiff's charge 1 was illegal, not simply misleading, it should have been refused because no explanation or qualification of it could make it good. Mobile City Lines v. Holman, 273 Ala. 371, 373, 141 So.2d 180.

If, however, plaintiff's charge 1 was merely incomplete and, therefore, misleading, giving it was not reversible error. It is not necessarily reversible error to give ambiguous or misleading charges; proper explanatory instructions should be given at the request of the party supposing himself prejudiced thereby. Birmingham So. R. Co. v. Harrison, 203 Ala. 284, 291, 82 So. 534 541; First National Bank of Mobile v. Ambrose, 270 Ala. 371, 374, 119 So.2d 18, 21.

On original deliverance, we held plaintiff's charge 1 to be an incorrect statement of the law and not merely incomplete and misleading. On further consideration, we think that our holding on original deliverance is in conflict with Southern Ry. Co. v. Smith, 221 Ala. 273, 128 So. 228; McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So.2d 332; and Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228. The three cases last cited were not called to our attention on original consideration of this appeal.

In Southern Ry. Co. v. Smith, supra, defendant excepted to certain portions of the court's oral charge. On the appeal, appellant assembled three exceptions as one paragraph and gave that paragraph the number 16. The third exception in number 16 recites:

". . . A defendant would be held liliable for the torts or wrongs done by its agent, servant or employee if at the time the tort or wrong was done the agent, servant or employee was acting in the line and scope of his employment as such agent, servant or employee."

Another exception to the oral charge was numbered 19. It recites:

'19. 'A defendant would be held liable for the torts or wrongs done by its agent, servant or employee if at the time the tort or wrong was done the agent, servant or employee was acting within the line and scope of his employment as such agent, servant or employee.''

Neither number 16 nor number 19 contains any reference to...