Tolbert v. Tolbert

• Citation: 903 So.2d 103
• Parties: Darryl TOLBERT, individually and as personal representative of the estate of Steven L. Tolbert, a deceased minor v. Candis TOLBERT, as administrator of the estate of Anna Jane Key, deceased.
• Decision Date: 08 October 2004
• Court: Supreme Court of Alabama

903 So.2d 103

Darryl TOLBERT, individually and as personal representative of the estate of Steven L. Tolbert, a deceased minor v. Candis TOLBERT, as administrator of the estate of Anna Jane Key, deceased.

1030434.

Supreme Court of Alabama.

October 8, 2004.

Rehearing Denied December 17, 2004.

Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, Gadsden, for appellant.

Mark D. Hess of Haskell Slaughter Young & Rediker, L.L.C., Birmingham; and Hugh C. Harris of Bland, Harris & McClellan, P.C., Cullman, for appellee. Joana S. Ellis of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and Samuel H. Franklin of Lightfoot, Franklin & White, LLC, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the appellee.

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amici curiae Alfa Mutual Insurance Company and Alabama Civil Justice Reform Committee, in support of the appellee.

F. Lane Finch, Jr., and Michael C. Skotnicki of Haskell Slaughter Young & Rediker, LLC, Birmingham, for amicus curiae Occidental Fire & Casualty Company of North Carolina, in support of the appellee.

HARWOOD, Justice.

The father of a minor son killed in a motor-vehicle accident while a passenger in an automobile operated by his maternal grandmother, who was also killed in the collision, appeals from a summary judgment entered in favor of the grandmother's estate in the father's wrongful-death action. We affirm.

Steven Tolbert was the 14-year-old son of Darryl Tolbert and Candis Tolbert, who were divorced. Although Darryl had been awarded legal custody of Steven, the boy lived primarily with Candis in Cullman. Steven was being "homeschooled," although Candis worked in Huntsville at a job to which she had to report by 8:00 a.m. each day, and from which she frequently did not return home until 6:00 p.m. Candis's mother, Anna Jane Key, who was retired, stayed at Candis's house every week Monday through Thursday. She supervised the homeschooling and otherwise cared for Steven during the day. On Fridays Ms. Key would visit Candis's sister in Atlanta; Steven often went with her. Ms. Key and Steven were quite close, and while Candis was at work, Ms. Key was Steven's primary caregiver.

On the morning of the accident, July 25, 2000, Candis left for work as usual and mid-morning Ms. Key drove her car, accompanied by Steven, to pick up his best friend, Chris Givens; she then returned with the two boys to Candis's house. During that day Chris helped Steven with his homework, and the boys accompanied Ms. Key while she drove her car to run some errands. Early that evening, while it was still daylight, Ms. Key, accompanied by Steven, drove Chris home. A light rain had begun to fall. The route to Chris's house, which Ms. Key had traveled a few times during the preceding year carrying Chris to and from his house, was uphill on a double "S" curve on Highway 278 West. After dropping Chris off at his house, Ms. Key began the return trip, traveling eventually downhill and into the portion of the road forming the double "S" curve. Ms. Key lost control of the car on the rain-slicked roadway; it slid into the opposing lane of traffic and collided with another vehicle, resulting in the death of the driver of that vehicle, Steven, and Ms. Key.

State troopers who investigated the accident concluded that Ms. Key's "driving was improper for the conditions." The posted speed limit was 55 miles per hour. There were no skid marks on which the troopers could base an estimate of Ms. Key's speed, but one of them was of the opinion "that for whatever reason she was driving improper for the environment and was unable to negotiate the curve.... [I]t's my opinion that for whatever reason that Ms. Key as the primary contributor was at fault in this crash." There was no evidence from which the troopers could conclude that Ms. Key was driving in excess of the speed limit; whether she was traveling 40 miles per hour or 60 miles per hour simply could not be estimated according to one of them, but "they're all possibilities." The downhill stretch of road Ms. Key was traveling involved "a fairly steep grade" and fairly significant curves. At the top was a warning sign reading: "Sharp curve ahead. Trucks must slow to 35 mph." Horace Elmore, a motorist following behind the truck with which the Key automobile collided, causing it to hit Elmore's vehicle, testified that he was traveling up the steep grade when:

"I seen a gray car shoot around the curve and it looked like that she didn't never even—she didn't even—the car never did even start to make a curve. It just went straight across almost like it was headed toward the guardrail and it looked like that maybe she might have got control of it and it come back across the road and then it went into a spin and come spinning down the hill and hit the little truck in front of me.

"....

"Well, I don't know if it was—you know, generally when a car goes into a skid it speeds up. And I don't know if the car was skidding when it come around through there so fast or whether she was just—but I'm just estimating, you know, and I would say that she was probably going over the—about 60 miles an hour."

Darryl asserts on appeal that the trial judge erred in several different respects involving venue and the merits of his wrongful-death action. We address each of those contentions.

I. Venue

Darryl filed this action in the Etowah Circuit Court, but consented to its transfer to the Cullman Circuit Court after the defendant, "the estate of Anna Jane Key" (hereinafter "the estate"), moved the Etowah Circuit Court to transfer the case based on the assertions that Ms. Key "was a resident of Cullman County, Alabama, at the time of the motor vehicle accident made the basis of this action" and that her estate was "being administered in the Probate Court of Cullman County, Alabama." (Letters of administration were granted to Candis as administratrix of the estate by the Probate Court of Cullman County on September 14, 2000.) Subsequently, Darryl moved the Cullman Circuit Court to transfer the case back to Etowah County, based on the fact that the estate, in answering an interrogatory, had identified Ms. Key's "home address at the time of her death" as an address in Gadsden, Etowah County, Alabama. Candis later explained in her deposition, however, that after her mother retired, she "didn't ever stay at home—at her house"; rather, "she had been either with me or my sister continuously." The Cullman Circuit Court denied the motion to transfer the case back to Etowah County.

Darryl argues in his brief to this Court that venue was proper where Ms. Key resided or where the accident occurred, citing § 6-3-2(a)(3), Ala.Code 1975, which provides that all "personal actions" of this type "against individuals" may be brought in the county where the defendant "has within the state a permanent residence" or in the county in which the act or omission occurred. As the estate points out in its brief, however, venue of actions against estates is governed not by § 6-3-2, but by § 43-2-130, which provides, in pertinent part, that "[c]ivil actions may be brought against executors or administrators in their representative character, in all cases, in the county in which letters were granted." In Ex parte Wiginton, 743 So.2d 1071, 1073 (Ala.1999), this Court observed:

"The defendants in this case are of three types: corporations, a natural person (or `individual'), and an executrix. Venue as to these three types of defendants is addressed by separate statutes.

"....

"[Defendant] Mildred E. Kennedy is an executrix. The venue statute applicable to her is § 43-2-130...."

Darryl claims that "[t]he case was moved [to Cullman County] based on a false allegation," but the grant of letters of administration to Candis by the Cullman Probate Court stands, and Darryl's attempt at a collateral indirect attack on the grant of letters of administration is procedurally impermissible. "Where the fact of inhabitancy does not exist, the grant of administration is not void, but may be avoided by a direct proceeding for that purpose." Holmes v. Holmes, 212 Ala. 597, 599, 103 So. 884, 886 (1925). Furthermore, "[c]ourts of probate, within their respective counties, have authority to grant letters of administration on the estate of persons dying intestate ... [w]here the intestate, at the time of his death, was an inhabitant of the county." § 43-2-40(1), Ala.Code 1975. Given the circumstances of Ms. Key's living arrangements at the time of her death, Darryl has not established that his consent to the transfer of the action to Cullman County was "based on a false allegation."

Darryl has shown no error with respect to the trial court's refusal to transfer the case back to Etowah County.

II. The Merits

The summary-judgment order entered by the trial court stated:

"There being no evidence of wantonness on the part the Defendant and the motion being well taken and there being no genuine issue of fact or law and the Defendant being entitled to Judgment as a matter of law, Summary Judgment is hereby entered for the Defendant and against Plaintiff."

A. Constitutionality of the Guest Statute

At a point in the proceedings, Darryl filed a "Constitutional Challenge of the Guest Statute."¹ Section 32-1-2, Ala.Code 1975, commonly known as the guest statute, was enacted by the Legislature in 1935. It reads:

"The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle."

Darryl contended that the guest statute violates §§ 13 and 22 of the...