Winn-Dixie Montgomery, Inc. v. Holt

• Decision Date: 03 March 1976
• Docket Number: WINN-DIXIE
• Citation: 329 So.2d 556,57 Ala.App. 499
• Parties: MONTGOMERY, INC. v. Joe R. HOLT and Molly F. Holt. Civ. 590, Civ. 590--A.
• Court: Alabama Court of Civil Appeals

Page 556

329 So.2d 556

57 Ala.App. 499

WINN-DIXIE MONTGOMERY, INC. v. Joe R. HOLT and Molly F. Holt.

Civ. 590, Civ. 590--A.

Court of Civil Appeals of Alabama.

March 3, 1976.

Rehearing Denied March 31, 1976.

Davies, William & Wallace, Birmingham, for appellant.

John E. Lunsford and Lawrence B. Clark, Birmingham, for appellees.

WRIGHT, Presiding Judge.

Verdict and judgment for plaintiff in two cases consolidated for trial are appealed by defendant. We affirm.

Joe R. Holt and Molly Holt filed suits for damages arising out of an automobile accident in which Molly Holt was injured and the automobile of Joe Holt was damaged.

The accident occurred on June 6, 1973, on U.S. Highway 31 in Montgomery County. At the place of the accident Highway 31 is four lane with a grass median separating the north and southbound lanes. It had rained steadily all day and was raining at the time of the accident just after noon. Molly Holt was traveling north from Montgomery toward Birmingham in the right lane of the northbound traffic lanes. She was driving a new Ford automobile purchased at Auburn, Alabama that morning.

Defendant's driver was traveling south toward Montgomery driving an empty tractor-trailer unit. His testimony was that he was traveling in the lane nearest the median, passing or having just passed another vehicle traveling in the outside lane going in the same direction.

While driving his unit in a straight line, defendant's truck began to skid and the trailer jackknifed. The unit came into, through and across the grass median into the northbound lanes of the highway. Some part of the unit struck the Holt automobile. At the time of impact, the Holt car was all or partially off the pavement onto the shoulder of the highway and was stopped. Mrs. Holt had seen the truck as it began to skid and come toward her across the median and had pulled as far to her right as she could without going into a deep ditch. After impact, defendant's truck and trailer traveled another 50 feet back into the median and came to a stop in a jackknifed position.

Defendant's driver stated he was traveling 40 to 45 miles per hour at the time the skid began. He had done nothing to the unit to cause it to veer from a straight line and begin to skid. He knew the highway was wet and contained pools of water. He had driven loaded from Montgomery to Tuscaloosa before dawn. There he was unloaded and began his return to Montgomery. It had rained on him all the way. The tires and mechanical condition of the truck were good. He knew that his truck had a tendency to skid on wet pavement. He knew of no cause for its skidding. The grass median was wet and soft. The truck left visible tracks through the median bringing large amounts of mud, grass and rock with it onto the north lanes of the highway and back into the median where it stopped.

After hearing the evidence and the court's charge the jury returned a verdict for Mrs. Holt in the sum of $2,250.00 as damage for her injuries. Verdict for Mr. Holt was $1,800.00 for property damage, medical costs and loss of services of Mrs. Holt. At the close of plaintiff's evidence and after resting, defendant moved for a directed verdict. These motions were denied. After judgment defendant moved for a new trial. That motion was denied.

Defendant submitted 21 assignments of error. Of these, 13 assignments charge error in the refusal of requested instructions. Assignments 11 and 21 are not argued in brief and are waived. R. C. Bottling Company v. Sorrells, 290 Ala. 187, 275 So.2d 131. Rule 51, ARCP denies the right to assign as error on appeal the refusal of requested written charges unless the requesting party states objection together with grounds therefor at the close of the oral charge and before the jury retires to consider its verdict. An examination of defendant's objection to the court's charge fails to indicate objection to the refusal of any specific written charge. The objections stated and the grounds given cannot apply to charges referred to in assignments, 1, 6, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20. These assignments are not for consideration on appeal. Rule 51 ARCP.

Assignment of error 2 complains of refusal of the following written charge:

'I charge you that you are authorized to consider as a measure of damage in personal property such as an automobile, the amount it would take to repair said automobile, to place it in the same or like condition it was before damage.'

In support of its argument that Charge 2 was improperly refused defendant cites the case of Dean v. Johnston, 281 Ala. 602, 206 So.2d 610. That case involved damages to a commercial vehicle. The measure of damages is not the same as in the case involving a non-commercial vehicle. Defendant also cites the case of Austin v. Tenn. Biscuit Co., 255 Ala. 573, 52 So.2d 1909 That case stated the following principle which is the law applicable to this case:

'The general rule is that the measure of damages for injury to an automobile is the difference between the market value of the automobile immediately before 190. That case stated the following principle after. . . . The difference between the value of an automobile before and after an injury may be shown by proof of a reasonable cost of restoring it to its original condition. Webb v. O'Kelly, 213 Ala, 214, 104 So. 505.'

It can readily be seen that there is a distinction between the requested charge and the rule enunciated by Austin v. Tenn. Biscuit Co., Supra. The cost of repairs is not the measure of damages, but may be shown as a means of establishing such measure. The court stated the rule of Austin in its oral charge and the refusal of the requested Charge 2 was not error.

Assignment of error 3 addresses the oral charge concerning the evidence of repair costs. The court charged as follows:

'Again, not commenting on the evidence, because that is not my job, but I will say the evidence has been presented to you and regarding the question of repair estimates or repair bills, the jury is authorized and may consider the testimony in that regard in viewing the credibility of the testimony regarding fair market value as to whether it is reasonable or unreasonable. That is for you to say.'

Though not an explicit statement of the relation of repair cost to fair market value as is found in Austin, we see no prejudice to defendant in the charge. It appears to us that the court merely said that the jury could lay the testimony as to repair costs alongside the testimony of plaintiff as to market value before and after to determine if such testimony was credible, was reasonable or unreasonable. Thus, the jury could use repair costs in determining damages. We find no prejudicial error in the charge objected to. Rule 45, ARAP.

Defendant objected to the court's oral charge on the ground that it failed to charge a breach of duty as an essential element of plaintiffs' right of recovery. Defendant requested no such written charge....