Trahan v. Cook, 1 Div. 711

CourtSupreme Court of Alabama
Writing for the CourtHARWOOD; HEFLIN
Citation288 Ala. 704,265 So.2d 125
PartiesLynn McArthur TRAHAN v. John Joseph COOK, Jr.
Docket Number1 Div. 711
Decision Date20 July 1972

Brown, Hudgens, Fulford, Sintz & Richardson, Mobile, for appellant.

M. A. Marsal and Howell, Johnston, Langford & Findbohner, Mobile, for appellee.

HARWOOD, Justice.

John Joseph Cook, Jr., worked as a bookkeeper and an accountant. He had an arrangement with Bernie R. Smith, who operated an automobile body repair shop, whereby he did the bookkeeping for Smith in return for the use of an office in the body repair shop. At times Cook would help with other services around the shop. He also rendered bookkeeping and accounting services to other firms and individuals.

On 30 April 1970, he drove with Smith in Smith's truck to pick up a Mercedes automobile and bring it to the shop in order to repair a fender. On the return trip to the shop, Smith drove the Mercedes and Cook followed in the truck. Their return route was by way of Airport Boulevard.

Airport Boulevard crosses Interstate Highway 65 as an elevated viaduct, and beyond the bottom of the descent of the viaduct and on its eastern side there is a traffic light controlling traffic into and out of the entrance road to a shopping center parking lot.

The side of the Boulevard on which Cook and Smith were travelling consists of three traffic lanes. Smith, in the Mercedes, stopped in the center lane at the traffic light which was red against him, and Cook stopped the truck some 15 to 25 feet behind the Mercedes, in the same lane.

While waiting for the light to change, Smith glanced in the outside rear view mirror of the Mercedes and saw an automobile top the viaduct some 100 yards to his rear at what Smith testified, without objection, was an excessive speed. Before he could do anything the automobile crashed into the truck driven by Cook, which in turn was knocked into the Mercedes driven by Smith.

The force of this impact knocked the truck into the middle of the intersection, and the Mercedes all the way across the intersection. This offending automobile, a 1969 Oldsmobile, was driven by Mrs. Lynn McArthur Trahan.

The force of the impact knocked the truck engine loose from its motor supports and the engine came up through the hood, and the truck was just 'pancaked.' The back of the cab of the truck was bowed backward where Cook's head had hit, and the glass was broken.

The Mercedes was damaged to the extent that everything from the rear doors backward had to be replaced.

The front end of the Oldsmobile automobile driven by Mrs. Trahan was demolished. The air conditioner of the Oldsmobile was buried in the back of the cab of the truck.

Cook filed suit against Mrs. Trahan. His complaint was in two counts, one in negligence, and the second alleging wantonness.

The jury trial resulted in a general verdict for Cook damages being assessed at $15,000.00, and judgment was entered pursuant to the verdict. Mrs. Trahan's motion for a new trial being overruled, she perfected this appeal from both the judgment and from the order overruling the motion for a new trial.

In the trial below the plaintiff Cook presented only three witnesses, himself, Bernie R. Smith, and Willie Edward Sellers. Sellers' testimony was directed solely toward Cook's physical condition before and after the collision.

The defense offered no testimony. Although Mrs. Trahan was placed in the witness box, she was immediately withdrawn by her attorney before any questions were addressed to her, and the defense rested. The attorney for the plaintiff was not thereafter permitted to question her.

In addition to the facts already set out above, Smith testified that in the traffic court hearing Mrs. Trahan had testified that the brakes had failed on her Oldsmobile. He further testified that he and a police officer had examined the Oldsmobile after the collision and he could find nothing wrong with the brakes, and that all late model automobiles have a double action braking system and if one part of the master cylinder goes out, two of the brakes will still work. Smith found no skid marks on the Boulevard after the collision.

Immediately after the collision Smith went to the truck. He found Cook 'everything but knocked out.' He then went to Mrs. Trahan's car and administered to her. An ambulance soon arrived and Mrs. Trahan was taken to a hospital. Cook 'had kind of regained consciousness' and refused to go in the ambulance and said he would go to a doctor. Smith had known Cook well for a number of years. Prior to the accident he was a very active person. Since the accident he has been very nervous, and complains of headaches all the time, '* * * he is just not the same person.'

Willie Edward Sellers had known Cook for thirty years. Cook was an active outdoorsman prior to the accident. Since the accident he complains of headaches. Once he took Cook fishing on his boat subsequent to the accident and Cook developed a headache and had to 'go inside' and lie down.

The plaintiff Cook testified that about two hours after the collision he went to see Dr. Guy Rutledge. At this time he had an ache in the front part of his head. Dr. Rutledge made X-rays and gave him a prescription. His neck and shoulders were sore for a few days. However, he now develops headaches about once a week, particularly when lying down, or when he is out in the sun. His neck also pains him 'when he thinks about it.' He demonstrated the movements of his neck which would cause pain.

Prior to the accident he carried on his work as a bookkeeper, not only at the body shop but for other clients. He was also an active hunter, and fisherman.

Since the collision he has had to curtail his outside activities, and has had to drop some of his bookkeeping work, being unable to turn out as much work as he did before his injury.

Prior to the accident Cook testified, he had never suffered from headaches. He was never one to take medicine, and for this reason he did not have Dr. Rutledge's prescription filled since he was informed that it contained a drug.

Cook has consulted Dr. Rutledge some seven times, and Dr. Cominick twice concerning his headaches.

Counsel for appellant has argued four points as constituting error, (1) the court's refusal of appellant's motion for a new trial on those grounds going to the sufficiency of the evidence to support the verdict, (2) the refusal of two written peremptory charges to the effect that the jury could not find for the plaintiff under the wanton count of his complaint, (3) the overruling of appellant's objection to a portion of the argument of counsel for the appellee commenting on the appellant's failure to testify, and (4) the excessiveness of the damages.

We will first consider those assignments asserting that the court erred in overruling appellant's motion for a new trial because of the refusal of appellant's written peremptory charges as to the wanton count.

In brief counsel for appellant writes: 'However, there is not one single inference from any shred of evidence in the record of the trial of this case which would in any way infer that the defendant was guilty of wantonness, as charged in Count Two of the complaint.' We disagree.

Wantonness has been defined in innumerable opinions of this court and we will not belabor this opinion by any extensive review of these cases. In the final analysis it is the application of the legal principles of wantonness to the factual situation presented in each case that must control.

In Merrill v. Sheffield Co., et al., 169 Ala. 242, 53 So. 219, it is stated:

'To constitute wanton negligence, there must be a design, purpose, or intent to do a wrong, or reckless indifference or disregard of the natural or probable consequences of the act done.'

In Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505, it is stated:

'Knowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact of actual knowledge is a legitimate inference.'

The evidence tends to show that the appellant drove over the...

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