Powell Ambulance Service v. Cooley

134 So. 2d 193, 273 Ala. 58, 1961 Ala. LEXIS 551
CourtSupreme Court of Alabama
DecidedNovember 2, 1961
Docket1 Div. 817
StatusPublished
Cited by3 cases

This text of 134 So. 2d 193 (Powell Ambulance Service v. Cooley) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell Ambulance Service v. Cooley, 134 So. 2d 193, 273 Ala. 58, 1961 Ala. LEXIS 551 (Ala. 1961).

Opinion

COLEMAN, Justice.

This is an appeal by defendant from a judgment in favor of the plaintiff in an action at law for damages for personal injury allegedly sustained by the plaintiff as the result of being thrown from or falling out of an ambulance operated by defendant.

Plaintiff worked at a barroom and dance hall from 4 p. m. to 2 a. m., except Saturdays when she got off at midnight. On the night in question, after she got off from work, she did not leave the place until [60]*60about an hour afterward. She “was up there drinking” and was “drunk” when she got home after midnight. She rode home with a man named Bob. She somehow received a cut on her nose and was bleeding. She woke up her daughter and had an argument with her. The police were called. Plaintiff took some pills and lay down on a sofa, apparently unconscious. The pills were probably calcium tablets. The chronological order of events is not certain.

In response to a call, defendant sent an' ambulance and plaintiff, apparently unconscious, was placed in it to be taken to a hospital. There was a driver for the ambulance but no other attendant. On the way to the hospital plaintiff, in some unexplained manner, left the ambulance and suffered bruises and abrasions which later became infected and required hospitalization. The driver did not testify how plaintiff left the ambulance and neither did she. When the driver heard a door slam he discovered plaintiff’s absence from the vehicle, stopped it, and saw plaintiff some 75 to 100 yards behind him, in the road 4 or 5 feet from the side of the pavement.

The complaint consisted of one count. Defendant filed a plea of the general issue and two pleas of contributory negligence. Demurrer was sustained to the pleas of contributory negligence, and the case was tried on the complaint and the plea, of not guilty.

Defendant argues assignments of' error relating to admission of evidence and refusal of requested charges.

Assignment 4.

The evidence complained of tended to show that a Mr. Powell, apparently acting as a defendant, had visited plaintiff and had made certain declarations against the interest of defendant. Assignment 4 recites :

“4. The Court erred in permitting the witness Rochelle Winters to testify as follows; over the timely objections of the Defendant:
“ ‘He said that he knew he should have more than one person in the ambulance and he would get his license taken away or have to pay more money for the insurance * * * ’
“ ‘And he told her that he’d get his license taken away or he’d have to pay more money for insurance, on his insurance bill and if she just wouldn’t take it any further, — your—you know, —say anything about it, that he’d pay for the medicine bills and all.’

The record shows that the two answers quoted in Assignment 4 were made by Rochelle Winters, the daughter of plaintiff, testifying on direct examination as follows :

“Q. Can you tell us what else was said by Mr. Powell and by your mother there? A. You want me to go ahead and finish?
“Q. Yes, — go ahead and tell us—
“The Court: Not about the rest of the conversation, but I take it your question deals not with any possible compromise of the matter.
“Q. Not with what he offered to do for her, or may have offered to do for her, but what else he said, including any reasons that he gave to you? A. He said that he knew he should have more than one person in the ambulance and he would get his license taken away or have to pay more money for the insurance—
“Mx-. Johns ton: I’m going to object, if Your Honor please.
“The Court: On what grounds, please sir?
“Mr. Johnston: Well, it’s certainly not an admission against interest. It’s not any legal requirement that anyone knows of that he have any more than one there. There is no law that states he should, and about his license being taken away, — there’s no law that re- [61]*61' quires him,- — he wasn’t even present when any of this took place.
“The Court: With reference to what the law is or isn’t, I don’t want the jury to gain the impression that the Court is ruling on that in connection with ruling on your objection. Your objection however is overruled.
“Mr. Johnston: Exception.
“A. And he told her that he’d get his license taken away or he’d have to pay more money for insurance, on his insurance bill and if she just wouldn’t take it any further, — your—you know, —say anything about it, that he’d pay for the medicine bills and all.
“Mr. Johnston: I’m going to move to exclude that on the same grounds. Offer of a compromise.”

Defendant contends that admitting the quoted testimony in evidence was error for that the statement attributed to Powell: (1) is an admission of matter of which the declarant did not have knowledge and (2) is an offer to compromise.

Before discussing defendant’s contentions, we note that the defendant is described in the complaint and in the summons as “Powell Ambulance Service, By Whatever Name Legally Known.” Summons was served on “Arthur Powell, Jr., as co-owner.” We understand that the Mr. Powell who allegedly made the statement is the father of Arthur Powell, Jr. The complaint does not disclose whether the defendant is a corporation, partnership, or an individual proprietorship. To the manner of designating the defendant, defendant has raised no objection in either the trial court or this court. The declarant, Mr. Powell, who is supposed to have made the statements to which the witness testified, is not named in the complaint as a defendant. Powell did not testify. From the evidence, however, we understand that he was one of the owners of the defendant company and that his statements are to be regarded as statements made by the defendant. Defendant does not argue that the statements were inadmissible because not made by a party to the suit, and, therefore, we have considered them as being made by the real party in interest as defendant.

We are of opinion that Assignment 4 is without merit because it embraces two rulings of the trial court and one of the rulings is not erroneous.

Defendant did not object to the first question until after it had been answered. Defendant did not move to exclude the answer but merely objected to it. Assuming arguendo, however, that the first answer was inadmissible, should have been excluded, and that the court erred in failing to exclude -it, that does not show that both of the rulings of the court which are combined in Assignment 4 were erroneous.

When defendant moved to exclude the second answer on the ground that it showed an offer of compromise, the court promptly and emphatically instructed the jury that: “The Court does not want to permit to come into the evidence of this case any evidence bearing on an alleged compromise. * * * the Court is * * * directing the Jury that that part is excluded * * *. With that statement by the Court, the objection is overruled.”

Thus it appears that the court granted defendant’s motion to exclude the testimony showing an offer of compromise. The court did all that defendant asked the court to do with respect to the second answer.

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Bluebook (online)
134 So. 2d 193, 273 Ala. 58, 1961 Ala. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-ambulance-service-v-cooley-ala-1961.