Windham v. Newton

• Decision Date: 10 May 1917
• Docket Number: 6 Div. 532
• Citation: 76 So. 24,200 Ala. 258
• Parties: WINDHAM v. NEWTON.
• Court: Alabama Supreme Court

76 So. 24

200 Ala. 258

WINDHAM v. NEWTON.

6 Div. 532

Supreme Court of Alabama

May 10, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Suit by Elbert Newton against B.L. Windham. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449 Affirmed.

Smith &amp Wilkinson, of Birmingham, for appellant.

Frank Dominick and W.J. Whitaker, both of Birmingham, for appellee.

MAYFIELD J.

Appellee sued appellant to recover damages for personal injuries the result of a collision between the bicycle of plaintiff and the automobile of defendant, in which respectively they were riding. The automobile was proceeding along Fourteenth street, and the bicycle going west along Fifth avenue, in the city of Birmingham, when the collision occurred at the junction of said thoroughfares.

Plaintiff's evidence tended to show that the automobile at the time of the accident was going at a high and dangerous speed in view of the existing conditions, and that upon reaching Fifth avenue it swerved, as if to go into the avenue, and then suddenly turned back into Fourteenth street, causing the machine to skid and collide with plaintiff's bicycle.

The defendant's evidence tended to show that the automobile was traveling at a slow and moderate speed, and was being handled carefully, that plaintiff had a skirt or cloth over his head, which prevented him from seeing defendant's automobile, and that he ran his bicycle into the right hind wheel of the automobile.

The trial resulted in a verdict and judgment for plaintiff. Defendant appeals from that judgment, assigning numerous errors. Only a few of these are argued, possibly because the others are clearly without merit.

One of the main contests on the trial was whether or not the defendant owned the automobile, he contending that it was the property of his wife, and the plaintiff that it was defendant's property. On this issue the court allowed in proof a certified copy of an application, purporting to have been made by defendant, for a state license to operate the automobile in question. The defendant insists that such action was error to reverse, maintaining that the certified copy was not admissible, because the statute requires such an application to be verified by affidavit, and this copy did not show that the original was so verified.

Section 3983 of the Code provides:

"All transcripts of books or papers, or parts thereof required by law to be kept in the office of any public officer, when certified by the proper custodian thereof, must be received in evidence in all courts; and it is no objection to such transcript that the book from which it is taken is a copy of office books belonging to the United States."

The application for a license is certainly a paper required by law to be kept in a public office (Acts 1911, p. 634). The copy of the application in question was properly certified by the custodian of the original, and such certified copy was admissible in evidence. The fact that the original was not verified or did not conform to the requirements of the law authorizing the issue of the license did not go to the admissibility of the certified copy in evidence, though it might go to the weight or the sufficiency of the proof of the facts it tended to establish. The fact that the original may have been a forgery does not render the certified copy inadmissible. This is true as to all certified copies of all original instruments; that is, it is possible that the given original was a forgery. The law does not attempt to make the copy conclusive, any more than it does the original.

Moreover, if this was error, it was error without possible injury, except as it may have tended to contradict or impeach the defendant as a witness. The defendant himself testified, and admitted, that on the occasion in question he was using the automobile for and on his own account, and that all control of the machine, except the mere mechanical manipulation of it, was for the time and occasion in him.

Under the...