Vredenburgh Saw Mill Co. v. Black

• Decision Date: 14 October 1948
• Docket Number: 1 Div. 323.
• Citation: 37 So.2d 212,251 Ala. 302
• Parties: VREDENBURGH SAW MILL CO. v. BLACK et al.
• Court: Alabama Supreme Court

37 So.2d 212

251 Ala. 302

VREDENBURGH SAW MILL CO. v. BLACK et al.

1 Div. 323.

Supreme Court of Alabama

October 14, 1948

C L. Hybart and R. L. Jones, both of Monroeville, and Ball & Ball, of Montgomery, for appellant.

Barnett, Bugg & Lee, of Monroeville, and Johnston, McCall & Johnston, of Mobile, for appellees.

Defendant's witness Suttle testified that he examined the truck tracks in the road at the place of the accident; that the tracks indicated that the wheels were not turning free; that there was evidence of a cutting condition and the tracks were deeper than normally. He was asked: 'Did those tracks show that the wheels that made them were being braked at the time?' Plaintiffs' objection to the question was sustained.

BROWN Justice.

This is an action on the case by the personal representatives of John W. Deer, deceased, for damages under the homicide act against the defendant for wrongfully causing his death on September 26, 1946. The case was submitted to the jury under counts 1, 3 and 4 of the complaint. Counts 1 and 3 ascribe intestate's death to the negligence of defendant's servant or agent while acting within the line and scope of his employment in the operation of a logging truck on the public highway leading past and in front of deceased's residence. The fourth count ascribed the death of plaintiff's intestate to the wanton conduct of said agent or servant.

The defendant pleaded in short by consent, the general issue, with leave 'to give in evidence any matter which if well pleaded would be admissible in defense of the action, to have effect as if so pleaded; and with leave to the plaintiff to give in evidence any matter which if well pleaded would be admissible in reply to such defense matter, to have effect as if so pleaded.'

The trial resulted in a verdict for plaintiff assessing the damages at $17,500 followed by motion for new trial which was overruled. Judgment entered in accordance with the verdict from which the defendant has appealed.

The evidence is without dispute that plaintiff's intestate was run against and injured about noon on September 26, 1946, on the Monroeville and Camden Public Highway, five miles south of Franklin in Monroe County. The road was thirty feet in width, was straight for some distance before it reached the point of the collision, with graveled surface. Defendant's truck loaded with logs while being driven by defendant's servant--Abner Moody--an experienced truck driver, who had been in its service for several years, ran upon or against said deceased, injuring him so that he died within about one hour thereafter. The evidence further shows that some distance south of the place of said injury, the truck had been loaded with logs by the driver in the woods and had been driven out upon the highway and was proceeding north toward defendant's mill. The truck entered upon the highway about a mile south of Deer's residence. That deceased was a farmer, a man 80 years of age, but spry and active for one of his age. His residence and barn were located on the west side of the highway, the barn being south of the residence approximately 114 feet. The pasture was on the opposite or right side of the highway, the gate of which was immediately across the highway from the barn lot gate. The evidence goes to show that Deer and his farmhand, one McKinley, had turned two mules out of the barnyard to put them in the pasture across the highway through the gate. McKinley and the driver of the truck were the only eye witnesses to the catastrophe.

McKinley, as a witness for plaintiff, testified that deceased had crossed the highway and was standing on the edge thereof as the mules were driven across and had been there some 3 or 4 minutes before the truck approached the place. That the truck swerved to the right, striking deceased, knocking him down and dragging him a distance of about 30 to 40 feet. There was evidence offered by the plaintiff going to show that a person looking southward down the public highway in the direction from which the truck approached could see approximately one-fourth of a mile. The lot gate was approximately 35 feet west of the west margin of the highway and the pasture gate was about 10 to 12 feet east of the east margin of the highway. There was evidence going to show that deceased, after he was stricken by the truck, was immediately opposite his residence, lying with his head 45 degrees north of west and his feet from a few inches to 2 or 3 feet west of the east margin of the highway. There was some evidence showing that his feet and legs extended over the margin of the highway onto the grass or weeds and his hat was off the highway near where he was first stricken. Plaintiff adduced evidence tending to corroborate the testimony of the witness McKinley.

The truck driver testified that as he approached the place of the catastrophe, he discovered the mules, first one then the other; that he swerved his truck to the right to avoid hitting the mules and one of the mules made the crossing immediately ahead of the truck, the other turned north and that the deceased, who came out of a clump of high weeds west of the highway attempting to head the mule and turn it across the road, ran out into the middle of the road, stopped ten feet ahead of the truck and then started to run again and ran in front of the truck.

The circumstances of the catastrophe, the location of the body, the marks on the highway made by the wheels of the truck and other evidentiary facts were given in detail from witnesses who came to the scene of the accident immediately thereafter and while the deceased was still at the point on the highway where the truck left him. He was still alive when the sheriff and others arrived at the scene. Without stating more of the details, our conclusion is that, the evidence presented a case for jury decision and that the affirmative charges as framed relating to counts 1, 3 and 4 were refused without error.

It has long since been settled by our decisions that where the complaint contains several counts, special requested written charges, which direct the jury if they believe the evidence they should find for the defendant on one or the other of said counts, are properly refused. The reason as stated in one of our earliest decisions is that such charge is calculated to impress the jury with the idea that a separate verdict must be rendered as to each count though under some they may find for the plaintiff. The tendency of such charge is to mislead or confuse and requires explanation. Mobile & Ohio R. Co. v. George, 94 Ala. 199, 10 So. 145; Christian Benevolent Burial Ass'n. v. Huff, 241 Ala. 119, 1 So.2d 390.

The record shows that after the trial court 'had finished qualifying the jury,' he asked the attorneys for the plaintiff and for the defendant if they had any questions that they would like for him to ask the jury. Whereupon Mr. Johnston, attorney for the plaintiff, said:

'* * * I understand that the Defendant is insured by the Indemnity Insurance Company of North America, and I wish your Honor would qualify the jury as to whether any of them are employees or stockholders of that Insurance Company, or whether they have any interest whatsoever in it.

'Mr. Ball: (For Defendant) We object----

'The Court: Gentlemen are either of you employees or stockholders in the Indemnity Insurance Company of North America, or have you any interest whatsoever in that company? * * *.'

Thereupon the jury was allowed to retire into the jury room and defendant's counsel moved for a continuance of the case on the ground that the statement made by Mr. Johnston that he understood that the defendant had insurance was prejudicial to the defendant because that statement was made in the presence of the entire panel of the jury and was made by Mr. Johnston in their presence for the purpose of prejudicing the jury. The attorney for defendant continued:

'* * * The usual way to get the jury qualified as to interest is for that information to be given to the Court privately. We had furnished the information--the name of the Insurance Company--to Mr. Johnston's associates, and to Mr. Johnston, thinking that he would handle it in the usual way. Instead of doing that, he is taking advantage of the situation and gotten in front of the whole panel and made the announcement that the defendant has insurance--that the--that he understand that the defendant has insurance in that Company--that could not possibly have been for any reason except to emphasize, and tell the jury that this defendant has insurance with the idea, not that the case would be tried on its merits, but on some idea of prejudice--that the defendant has insurance, and we ask your Honor, in view of what has taken place before this panel and jury, that this case be continued and be brought up again at another term of court with a jury that has not been poisoned by the statement made by the attorney for the Plaintiffs--bringing in a foreign issue--an issue that has no place in a court of justice, and we ask your Honor to continue the case.

'Mr. Johnston (for Plaintiff): If your Honor please, with all due respects to the gentleman, he can't read my mind to determine what my purpose is. I have a right to qualify the jury as to the interest in the Indemnity Insurance Company of North America, which Company I do understand has insurance in this case. Whatever may be the practice as he knows it, it is very different to what the practice has been in the Circuit which I have practiced in. I have never known of the information being given privately to the Judge * * *.'

Further statements were made by counsel for each side as to the practice in respect to this matter. The court did not err in overruling the...