Walker v. Cardwell

Decision Date12 August 1977
Citation348 So.2d 1049
PartiesEmmett WALKER, Jr., father of Theresa Thomas Walker, a minor, Deceased v. Clarence CARDWELL, Administrator of the Estate of Donald Frank Cardwell, Deceased. SC 1946.
CourtAlabama Supreme Court

Marlin M. Mooneyham, Montgomery, for appellant.

Harry Cole and Thomas C. Sullivan for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.

ALMON, Justice.

This is an appeal by the plaintiff in a wrongful death action. Theresa Thomas Walker, age one, was killed in an automobile accident. Frank Cardwell, age twenty-eight, presumably was killed in the same accident. Emmett Walker, Jr., father of Theresa, brought suit for wrongful death against the estate of Donald Frank Cardwell (Clarence Cardwell, administrator) alleging negligence and wanton misconduct. The jury verdict and judgment were for the defendant. The appellant, Emmett Walker, Jr., moved for a new trial contending primarily that the jury verdict was contrary to the evidence. The appellant contends the court erred in not granting a new trial, that closing argument of appellee's counsel was improper, and that a jury charge was incorrect. We affirm.

The accident occurred on the Mobile Highway in Montgomery, Alabama. At this point the four laned highway runs in a north-south direction and has a raised median. The highway is straight and the surface was dry on the day of the accident.

One of the witnesses to the accident observed Donald Cardwell (deceased) proceeding south on the inside northbound lane. He observed the car for about one-half mile drift from one side of the northbound lane to the other. The car almost hit the automobile of an elderly couple. Thereafter, it sideswiped a Price Donut Company truck, and struck the car driven by Jerry Walker in which Theresa (deceased) and Emmett Walker were passengers. Three other witnesses testified similarly. According to a police officer, no alcohol was found in Donald Cardwell's blood.

The appellee's only defense witness was the father of Donald Cardwell, Clarence Cardwell. Clarence testified that 3 to 5 years previously Donald began having fainting spells. His first was while fueling a plane at Dannelly Field in Montgomery. When Donald would black out, he would become unconscious as if he were sleeping. Donald received medical examinations at Jackson Hospital in Montgomery, the University of New Orleans, the University of Jackson in Mississippi, and later visited Oschner's Clinic in New Orleans three or four times. After the rests his job was changed to ticket agent.

Donald had a prior accident, but his father was not sure it was related to the fainting spells. On at least one occasion, though, he had turned his driver's license in to the State for a year or longer. Donald also had a pilot's license, but no longer flew.

His last fainting spell, to the best of his father's knowledge, was approximately 2 years ago. In July, 1974, a few months before the accident, Donald and his father took a vacation through North Carolina, Tennessee and Georgia, on which Donald drove about three-fourths of the way.

The scope of review regarding the granting of a new trial for insufficient evidence is well stated in Hodges & Company v. Albrecht, 288 Ala. 281, 285-286, 259 So.2d 829, 832 (1972):

". . . We acknowledge that,

" '* * * It is the rule that where the verdict is contrary to the great preponderance of the evidence, defendant, on due motion, is entitled to a new trial, though the court was not in error in declining the affirmative charge. The scintilla of evidence rule does not apply as to the ruling on the motion. (Citations omitted.)'

"However, we also point out that,

" '* * * This court has held many times that verdicts are presumed to be correct and no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. (Citation omitted.) Furthermore, verdicts are presumed correct and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. (Citation omitted.) Furthermore, on appeal from a judgment for the plaintiff this court must review the tendencies of the evidence most favorable to the plaintiff allowing such inferences as the jury was free to draw. (Citations omitted.)'

"See, 15A Ala.Dig., New Trial, k72.

"Moreover, this court has held that,

" '* * * "the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. " (Citations omitted.)'

"See 2A Ala.Dig., Appeal and Error, k1003."

Part of the jury charge read as follows:

"The Court charges the jury that if you are reasonably satisfied that Donald Frank Cardwell had lapsed into unconsciousness prior to the accident without any warning symptoms, or knowledge that such a condition would occur, then he could not be considered guilty of negligence or wantonness for anything which would have occurred after he lost consciousness."

The question of whether Donald Cardwell lapsed into unconsciousness without prior knowledge was a jury question. We hold that sufficient evidence existed to support the jury's conclusion: no alcohol was found in Donald's blood; he had a history of fainting spells but his last one occurred at least 2 years before the accident; he had driven 3/4 of a vacation visiting three states a few months prior to the accident; and his car was seen drifting back and forth down the wrong side of the highway for 1/2 mile preceding the accident.

During appellee's closing argument, the following transpired "MR. COLE: I think your common sense will tell you that this boy either had a heart attack or was dead when this car crossed that centerline out there that day or

"MR. MARLIN MOONEYHAM: Judge, I am going to object to him having a heart attack. I don't think there's any evidence whatsoever that he had a heart attack, and not any inference. I think it's improper for him to argue to the Jury that he had a heart attack.

"THE COURT: I overrule your objection based upon, you know, that it's argument to the Jury and it's the way that Counsel sees it but what Counsel has to say is not evidence. The only evidence that you receive here is the evidence that you receive from the witness stand. What Counsel says is mere argument to you, so I overrule your objections, but I want to instruct you that the only evidence you are to consider is that which you heard here. All right. Go ahead."

Appellant contends that the reference to a heart attack was prejudicial.

In argument to the jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). Much must be left to the judgment of the trial court, with presumptions in its favor. To justify reversal, substantial prejudice must have resulted. Id. McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958).

The exact cause of Donald Cardwell's death was not brought out in the testimony. The reference to the heart attack could have meant to infer to the jury that his acts were beyond his control. While the evidence does not directly support the theory of a heart attack,...

To continue reading

Request your trial
38 cases
  • McCall v. Wilder
    • United States
    • Tennessee Supreme Court
    • December 11, 1995
    ...capacity or consciousness while driving provided that the loss of capacity or consciousness was unforeseeable. See e.g., Walker v. Cardwell, 348 So.2d 1049 (Ala.1977); Goodrich v. Blair, 132 Ariz. 459, 646 P.2d 890 (Ct.App.1982); Ford v. Carew & English, 89 Cal.App.2d 199, 200 P.2d 828 (194......
  • Roman v. Estate of Gobbo, 2002-0285.
    • United States
    • Ohio Supreme Court
    • July 23, 2003
    ...and should be modified. 1 A partial listing of decisions of other courts that recognize the same rule as Lehman includes Walker v. Cardwell (Ala.1977), 348 So.2d 1049; Hammontree v. Jenner (1971), 20 Cal.App.3d 528, 97 Cal.Rptr. 739; Renell v. Argonaut Liquor Co. (1961), 148 Colo. 154, 365 ......
  • Twilley v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 26, 1985
    ...must conclude that substantial prejudice has resulted. Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1977); Walker v. Cardwell, 348 So.2d 1049 (Ala.1977); Adams v. State, supra; Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970); St. Clair County v. Martin, 273 Ala. 302, 139 So.2d......
  • American Honda Motor Co., Inc. v. Boyd
    • United States
    • Alabama Supreme Court
    • July 3, 1985
    ...the trial court denies a motion for new trial. Carroll Kenworth Truck Sales, Inc. v. Leach, 396 So.2d 1044 (Ala.1981); Walker v. Cardwell, 348 So.2d 1049 (Ala.1977). American Honda has failed to convince this Court that we should abandon this rule in the instant case. Therefore, we are of t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT