Welborn v. Snider
| Decision Date | 29 April 1983 |
| Parties | Edgar WELBORN and Francis Welborn v. David R. SNIDER. 81-99. |
| Court | Alabama Supreme Court |
Edward F. Morgan, Tuscaloosa, for appellants.
Olin W. Zeanah, Tuscaloosa, for appellee.
This appeal involves a suit for personal injuries received by Edgar Welborn (Welborn) while helping David R. Snider (Snider) carry a pole in Snider's back yard. The trial court granted directed verdicts for Snider on Welborn's counts sounding in implied contract and failure to provide a safe place of employment, and entered judgment on the jury verdict for Snider on Welborn's negligence count. Welborn appeals from these rulings and also from a ruling limiting his examination of prospective jurors regarding possible bias.
At the time of the accident, Welborn was retired but worked for Snider's neighbor Walter Boyd doing odd jobs around Boyd's house and yard. On the day Welborn was hurt, Snider and his son Ollie were building a shed in their back yard. Welborn walked over to visit with them while they took a break from their work about 2:30 in the afternoon. When the Sniders returned to their work, Welborn accompanied them. The Sniders had one more post to raise for their shed; the three men picked it up, with Welborn at the front, Snider in the middle, and Ollie at the rear.
Ollie slipped and dropped the pole, causing Snider to lose control and drop it also. The pole fell on Welborn, fracturing several of his ribs and rendering him unconscious. He was taken to the hospital, where he was treated and released about two weeks later.
The first count of the complaint alleged that Welborn was on Snider's premises as an invitee and Snider negligently allowed or caused the pole to fall on Welborn. The second count alleged that Welborn was engaged in the work of helping Snider install the pole and the pole fell on him as a proximate consequence of Snider's failure to provide him with a safe place to work. Count three was Francis Welborn's claim for loss of consortium. The complaint was amended to add count four, alleging that Snider entered into an implied contract with Welborn whereby for the consideration of Welborn's assistance in raising the post, Snider impliedly promised to support the rear of the post.
The case came on for trial on March 30, 1981. The court in voir dire of the jury panel inquired whether any of the prospective jurors were policyholders of Alabama Farm Bureau Mutual Casualty Insurance Company. Snider had insurance coverage with Farm Bureau. Welborn's attorney followed that question with one asking a policyholder if he could fairly and impartially decide the case without favoring his insurance company. The court granted Snider's motion for a mistrial and stated that Welborn had violated a local court rule forbidding attorneys from asking any questions concerning insurance without first submitting the question to the court.
'Mr. or Mrs. (whoever the prospective juror may be) you said, I believe, that you are a policyholder with Farm Bureau Insurance Company.
'I will ask you if that being true, do you feel like you could fairly and impartially decide this case based strictly on the law and the evidence, or do you feel like you may be a little bit favorable to the insurance company that has your coverage?'
The motion requested that, if the court would not allow Welborn to ask the stated question, to specify its reasons and to rule whether or not the court would itself ask the question.
The court held the pre-trial hearing on April 7. It was established that the local court rule mentioned at voir dire predated the Alabama Rules of Civil Procedure and was no longer in effect because it had not been adopted in accordance with Rule 83, A.R.Civ.P. Nevertheless, the court ruled that allowing Welborn to ask policyholders whether they would favor their insurance company would improperly inject insurance into the case. The court stated that it would ask the entire jury panel whether they would be impartial and go by the evidence and whether they had ever been employed by any insurance company as an adjuster or agent.
Welborn filed a petition for mandamus to challenge the court's rulings at the pre-trial conference. This Court denied the petition on May 26, 1981, without published opinion. Ex parte Welborn, 402 So.2d 977 (Ala.1981).
When the case came on for trial again, ten members of the jury panel identified themselves as policyholders of Farm Bureau. Welborn challenged all ten for cause, and the trial court granted the challenges.
At the close of the evidence the court granted Snider's motion for directed verdict on the count alleging failure to provide a safe place of employment and on the implied contract count. The jury returned a verdict for Snider on the negligence count and the court entered judgment on the verdict. Welborn appealed to this Court.
The trial court properly granted the directed verdicts. Welborn argues the duty to provide a safe place of employment without first establishing that he was employed by Snider. "For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or in other words, not only what shall be done, but how it shall be done." Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 398, 232 So.2d 638 (1970); McCants v. State, 282 Ala. 397, 211 So.2d 877 (1968). Snider had no right to control Welborn's assistance, and certainly did not offer to pay him for it. Welborn himself, in answer to the question, "Were you employed by him [Snider]?" answered "No, sir."
Neither is there any evidence in the record indicating that the parties intended to become contractually bound. Welborn was simply a friend who volunteered his assistance to Snider. There were no negotiations which led to Welborn's assistance, no request by Snider for the assistance, and no directions by Snider concerning Welborn's location on the pole. The men were simply raising a pole with no thought of a contract and with no conversation or conduct which led to the formation of a contract.
There was thus no evidence of any agreement between Welborn and Snider. A contract implied in fact requires the same elements as an express contract, and...
To continue reading
Request your trial
-
Zaden v. Elkus
...bias. "The presence of insurance coverage is not ordinarily permitted to be injected into the trial of the case." Welborn v. Snider, 431 So.2d 1198, 1201 (Ala.1983) (citing Barnes v. Tarver, 360 So.2d 953, 956 (Ala.1978); Eathorne v. State Farm Mut. Auto. Ins. Co., 404 So.2d 682 (Ala.1981);......
-
Otwell v. Bryant
...with MASA. A plaintiff may not ordinarily introduce evidence showing that the defendant has liability insurance. Welborn v. Snider, 431 So.2d 1198 (Ala.1983); Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781 (1956). The appellants contend that a showing of liability insurance coverage is permi......
-
Wallace v. Alabama Power Co.
...statute is specifically limited to stockholders or others financially interested in an insurance company. However, in Welborn v. Snider, 431 So.2d 1198, 1201 (Ala.1983), this Court in applying subsection (12) of the statute "This Court has held that, although the above code section gives a ......
-
Pattillo v. Sanchez
...with MASA. "A plaintiff may not ordinarily introduce evidence showing that the defendant has liability insurance. Welborn v. Snider, 431 So.2d 1198 (Ala.1983); Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781 (1956). The appellants contend that a showing of liability insurance coverage is perm......