Watson v. Adams

• Decision Date: 22 January 1914
• Docket Number: 653,643
• Court: Alabama Supreme Court
• Parties: WATSON v. ADAMS SAME. v. FRANKLIN.

65 So. 528

187 Ala. 490

WATSON v. ADAMS

SAME. v. FRANKLIN.

Nos. 643, 653

Supreme Court of Alabama

January 22, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Actions by Fannie Allen Adams, administratrix of George B. Adams deceased, and by John P. Franklin, against T.J. Watson. Separate judgments for plaintiffs upon a joint trial, and defendant appeals in both cases. Reversed and remanded.

J.T Stokeley, R.H. Scrivner, and Frank L. Ward, all of Birmingham, for appellant.

Percy Benners & Burr, and Howard & Sinnott, all of Birmingham, for appellees.

McCLELLAN J.

These appeals, from a joint, single trial and separate judgments for the plaintiffs, present identical matter for review, though each appeal, with its assignments, is properly brought up on a separate transcript. The appeals are therefore considered together.

Between 12 midnight and 1 a.m. of January 14, 1912, George B. Adams and John P. Franklin were struck by a rapidly moving automobile; Adams being killed and Franklin seriously injured. The place of the occurrence was in Twentieth street, out several feet from the sidewalk, in the city of Birmingham. At and about the point where the collision took place, it appears that the street was an important and frequently, if not almost constantly, used (night and day) thoroughfare in that city. The complaints ascribed the injury of these men, in the first counts, to negligent operation of the automobile, and in the second, to wanton or willful misconduct. The pleas were the general issue. It is manifest from the evidence that every material issue made by the pleadings was for the jury's consideration and determination. This conclusion is not, as it could not well be, questioned on the record here.

The single, controlling question litigated by the parties was the identity--the ownership--of the automobile which killed Adams and injured Franklin. This issue was strenuously, and with every indication of diligence and of skill of able counsel, contested on the trial, and is projected here in earnest arguments upon the impropriety vel non of the court's action in overruling the motion for new trial, particularly on the ground assailing the verdict's justification in the evidence. The view prevailing here on questions other than that just mentioned renders it as unnecessary, as it is undesirable that an elaborate discussion of the evidence should be undertaken. However, it is both proper and necessary, in view of the considerations to be hereafter stated, that it be said that the conflicting evidence upon the issue of identity of the agency of injury, with the burden resting upon the plaintiff to establish, to the requisite decree, appellant's automobile as the guilty agent, makes this an instance typical of the wisdom and judicial necessity for calling upon 12 practical, sensible, impartial, oath-bound men, in the jury box, to justly resolve the issue, that justice may be the more certainly done. In this instance, what is the truth depends, under this evidence, upon the weight and credibility the triers of the fact give to the testimony of many witnesses on each side of the issue line.

During the cross-examination of the defendant (appellant), the bill of exceptions recites (omitting seasonable objections and motion that raised the questions to be hereafter discussed):

"Thereupon the plaintiff's counsel asked the witness the following question: 'Do you know who did employ Mr. Ward to defend him; do you know who Mr. Ward is representing now in this case?' To which question the defendant's counsel objected. Thereupon plaintiff's counsel asked the witness the following question: 'Is he representing you; are you paying him to handle this case and get up the evidence?' Defendant's counsel objected to the question as calling for irrelevant, immaterial, and incompetent testimony, which objection the court overruled, remarking, 'He has a right to know who he represents;' and, to the action of the court in overruling said objection, the defendant then and there, in open court, duly separately and severally excepted. Answering, the witness testified: 'I suppose he is representing me; I am not paying Mr. Ward. I didn't employ him in the case.' Thereupon plaintiff's counsel asked the witness the following question: 'Who did employ him in this case?' *** Answering the question, the witness testified: 'I don't know.' Thereupon the plaintiff's counsel asked the witness the following question: 'Don't you know that the AEtna Insurance Company does?' 'No, I do not.' Defendant's counsel after answer had been made objected to the question as calling for irrelevant, immaterial, and incompetent testimony. The court remarked: 'He says he don't know.' Thereupon plaintiff's counsel asked the witness the following question: 'Do you know who Mr. Stokeley is representing?' The defendant objected to the question on the ground that the record shows who he is representing. Thereupon the plaintiff's counsel asked the witness the following question: 'Are you employing Mr. Stokeley in the sense of paying his fee in this case?' *** Thereupon plaintiff's attorney asked witness the following question: 'All right, Mr. Watson, do you know who he is representing in the case?' And the witness, answering, said: 'Do you mean am I paying him to represent me?' And plaintiff's attorney replied: 'No, sir; I am not paying him to represent me.' *** Thereupon the plaintiff's counsel asked the witness the following question: 'Do you know whether or not he is representing the AEtna Insurance Company?' *** In answer to said question the witness stated: 'Do I know he is representing the AEtna Insurance Company?' Thereupon, in reply, plaintiff's counsel asked the witness: 'Yes, sir.' Answering said question the witness testified: 'I suppose he is; I could not swear who he represents. I suppose he is employed by that concern to represent them. I am under the impression he is.' Witness was then asked: 'You don't know whether he is or not?' And replied: 'I would not swear to it.' "

The attorneys appearing as representing the defendant were Joseph T. Stokeley, Frank L. Ward, and Robert H. Thach. On redirect examination, the defendant testified that he employed Mr. Thach, and that Mr. Thach represented him (defendant), and that Messrs. Stokeley and Ward were attorneys of record representing the defendant.

Upon the conclusion of the introduction of evidence, the bill of exceptions recites these matters, including, with that under consideration, other matters important as bearing upon other questions to be later treated.

"Thereupon the following proceedings took place: Mr Burr stated: There are two or three exceptions that Mr. Stokeley took that I want to consent that that evidence be excluded so there cannot be any possible question about it. The first is the statement made by Mr. Daly in reference to a conversation which he had with Mr. Kinney. Your honor will remember that over his objection I was allowed to prove the statement that Kinney made in Shipman's presence, and I am willing for that to go out. The Court: Give me a statement of the effect. Mr. Burr: The effect of it was that Mr. Daly testified that Kinney identified this car in Shipman's presence. The Court: Gentlemen, don't consider that part of the testimony. Mr. Stokeley: He stated they were there at the same time,

Kinney and Shipman. Mr. Burr: It is Daly's reference to the conversation that I am excluding. Mr. Stokeley: Your honor permitted him, over my objection, to testify to a conversation with a man named Kinney. The Court: All right, gentlemen, that is not before you. Mr. Burr: The testimony of Mr. Watson in reference that he supposed that Mr. Stokeley and Mr. Ward were representing an insurance company, I want that excluded, and what he said in reference to his employment of these gentlemen. The Court: That will not be before you for consideration. Mr. Burr: And also that portion of the conversation of Mr. Kinney in my office, we will let that go out too. The Court: All right, gentlemen, don't consider that. Mr. Stokeley: This question of Mr. Burr's that we objected to, we withdraw that objection to Mr. Adams about his advice and the witness afterward answered. Mr. Burr: That is out too. The Court: That is out too. Mr. Burr: Brookins was asked some questions in reference to these photographs (referring to photographs in evidence), some of them answered and some objections were sustained, too. If they want Mr. Brookins to re-examine him on that, I am willing for them to do it. Mr. Stokeley: How long will it take to get him here? Mr. Burr: The witness stated he could not tell from these photographs, and they are all in evidence now. Mr. Stokeley: I wanted to show by him that from the pictures he could not identify the car at all. This witness undertook to identify this as being Mr. Watson's car; what I asked him was whether or not the different pictures I showed him was Mr. Watson's car. I wanted to ask him if he could pick out Mr. Watson's car. Mr. Burr: At that time it was not shown that either one was a picture of Mr. Watson's car. Mr. Stokeley: We will look that up to-night and have him here in the morning if we need him. The Court: I will allow you to put him on. If he comes in, I will interrupt the argument long enough for you to interrogate him. Defendant's attorney did not call said witness to again take the stand. Thereupon attorney for plaintiff made the following statement: In reference to the objections which we have admitted, we think it is clear, and the jury understands what has just been excluded, but, if the attorneys for defendant are not satisfied with the sufficiency of the exclusion, we desire the stenographer to turn to his notes and have it read by

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