Wren v. Blackburn

304 So. 2d 187, 293 Ala. 393, 1974 Ala. LEXIS 981
CourtSupreme Court of Alabama
DecidedNovember 21, 1974
DocketSC 725
StatusPublished
Cited by14 cases

This text of 304 So. 2d 187 (Wren v. Blackburn) 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
Wren v. Blackburn, 304 So. 2d 187, 293 Ala. 393, 1974 Ala. LEXIS 981 (Ala. 1974).

Opinions

[395]*395BLOODWORTH, Justice.

This is an appeal by plaintiff from an adverse jury verdict and judgment for defendants.

Plaintiff was injured when the automobile he was driving collided at an intersection in Birmingham with a truck driven by defendant Blackburn, while the latter was allegedly acting within the line and scope of his employment with defendant Lorch, Inc., owner of the truck and Blackburn’s employer. The complaint charged negligence in Count 1 and wantonness in Count 2. Defendants interposed pleas of the general issue to both the negligence and wantonness counts and a plea of contributory negligence to the negligence count. The case was submitted to the jury on both counts and on both pleas. After the jury returned a verdict for defendants on both counts, the trial judge rendered judgment thereon. Plaintiff then filed a motion for new trial. It was overruled. Hence, this appeal. We affirm.

Plaintiff has made four assignments of error on this appeal:

“1. The Court erred in omitting in its oral charge to instruct the jury that contributory negligence was not a defense to the plaintiff’s wanton count and such error was not cured by the court’s explanatory charge. (Ts 286, 301)
“2. The Court erred in its oral charge to the jury in instructing the jury as follows:
‘So, if you find that the Plaintiff has proven to your reasonable satisfaction that the Defendants were guilty of negligence, and they have proven that the Plaintiff was guilty of contributory negligence which proximately caused his own injuries and negligence, then you don’t have to go any further in your deliberation. That would be a defense in itself for the law suit.’ (Ts 285)
“3. The Court erred in its oral charge to the jury in instructing the jury as follows:
‘Now, taking these counts again up to give you a recap if I may. If after a full and fair consideration of all the evidence in the case if you are not reasonably satisfied that the Plaintiff has proven the negligence count of his complaint, but that the Defendant has proven the contributory negligence plea also as far as count one, then the case would be over and done with, and your verdict would read, “We the jury find for the Defendant.” ’ (Ts288)
“4. For that the Court erred in overruling the plaintiff’s motion for a new trial. (Ts 22b, 22c)”

Under this last assignment of error, the ground of the motion for new trial argued is that the trial court erred in refusing to give plaintiff’s written requested charge No. 7, viz.:

“7. I charge you that if you are reasonably satisfied from the evidence that the defendant, William Blackburn, was guilty of wantonness, as defined by the court, on the occasion complained of in the plaintiff’s complaint, then any contributory negligence on said occasion by the plaintiff would not be a bar to his recovery, and your verdict should be for the plaintiff and against the defendant, William W. Blackburn.
Refused, Claude Hughes, Judge”

For a full and complete understanding of the issues on this appeal, we set out herein [396]*396pertinent portions of the rather lengthy-oral charge of the court, viz.:

“COURT’S ORAL CHARGE
“THE COURT: * * *
“ * * * This complaint contains two theories, or offenses if I may call it that, and they are contained in counts, they are count one and count two. * * * Count one is what we call a negligence count, and count two is what we call in law a wanton count. * * *
“The first defense interposed by each of the Defendants is the general issue. * * * As to the count one, the negligence count of the complaint, that’s Plaintiff complaint, there is a second and special defense interposed. Again, although not written out in longhand form, it is the plea of contributory negligence, * * *.
“Now, as far as the count two, the wanton count, the defense interposed is the general issue or not guilty. * * *
“Now, as I have indicated to you, the first defense interposed by all of the Defendants is the general issue not guilty. * * *
“Now, there is a second and special defense interposed to the negligence count of the Plaintiff’s complaint, and this is as I have indicated to you earlier the plea of contributory negligence.
“ * * * If Mr. Wren’s conduct was in your opinion careless or negligent, then you would ask yourself the question, ‘Did his negligence or carelessness either cause, or directly cause his own injury and damages?’ If so, this would be a full and complete defense to count one of the Plaintiff’s complaint. * * * So, if you find that the Plaintiff has proven to your reasonable satisfaction that the Defendants were guilty of negligence, and they have proven that the Plaintiff was guilty of contributory negligence which proximately caused his own injuries and negligence, then you don’t have to go any further in your deliberations. That would be a defense in itself for the law suit.
“Now, in going on, if I may, we are down to count two of the complaint. The second count of the complaint charges the Defendant with wantonly operating or wantonly permitting or wantonly causing that vehicle operated by the Defendant to proximately cause the Plaintiff to be injured or damaged. * * * Now, as to this count of the complaint, all three Defendants interposed the defense of the general issue not guilty, and when those defenses come in, then the law says that the burden of proof is upon the Plaintiff to reasonably satisfy you as to the truth of the material averments under that count of the complaint. * * *
“Now, taking these counts again up to give you a recap if I may. If after a full and fair consideration of all the evidence in the case if you are not reasonably satisfied that the Plaintiff has proven the negligence count of his complaint, but that the Defendant has proven the contributory negligence plea also as far as count one, then the case would be over and done with, and your verdict would read ‘We the jury find for the Defendant.’
“Now, the third option is this, that if after a fair and full consideration of all the evidence in the case, if the Plaintiff has either proven the negligence count and the Defendant failed to prove contributory negligence, or if the Plaintiff has proven the wantonness count, count two of his complaint, of course, in that event the form of your decision should be against the Defendant, and you would get down to the question of damages to be awarded. * * *
“(Whereupon, the jury returned to the Courtroom for further instructions at [397]*3974:00 P.M., May 17, 1973, and the following occurred:)
“THE COURT: * * *
“Your foreman has sent out to me a question, and I have called counsel for all parties back here, and they have read this question, and, of course, it involves a part of the charge of the Court on the legal responsibility between the parties to this particular lawsuit. Let me say this: That the way this question is posed, and I’ll read the question.

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Wren v. Blackburn
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Bluebook (online)
304 So. 2d 187, 293 Ala. 393, 1974 Ala. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wren-v-blackburn-ala-1974.