Opinion
8 Div. 743.
June 21, 1949.
Appeal from Circuit Court, Madison County; E.H. Parsons, Judge.
Action for damages by Velma M. Owen against W.M. Broglan, Jr. From a judgment for plaintiff, defendant appeals.
Affirmed.
The complaint is as follows:
"Count 1. Plaintiff claims of the defendant the sum of Five Hundred and no/100 ($500.00) Dollars, for that heretofore on, to-wit, the 29th day of September, 1947, the Defendant so negligently operated a motor vehicle on Hobbs Island Road in Madison County, Alabama about twelve miles south of Huntsville, Alabama, that he ran it upon or against the motor vehicle of the Plaintiff who was then and there driving her motor vehicle upon the said public highway as she had a right to do, thereby damaging the motor vehicle of the Plaintiff.
"And the Plaintiff avers that her said damage was proximately caused by the negligence of the Defendant in the operation of his automobile as aforesaid."
Thomas W. Layne, of Huntsville, for appellant.
Complaint for damages arising out of automobile accident must aver facts showing breach of duty by defendant owing to plaintiff and facts showing that as proximate consequence of such breach injuries complained of were sustained. 42 C.J. 1190; Snyder Cigar Tobacco Co. v. Stutts, 214 Ala. 132, 107 So. 73; Pelham v. Spears, 222 Ala. 365, 132 So. 886. When verdict is clearly against weight of evidence, court should set it aside and award new trial. Koonce v. Craft, 234 Ala. 278, 174 So. 478; Pollard v. Rogers, 234 Ala. 92, 173 So. 881. On cross-examination any fact may be elicited tending to show interest, partiality, bias of business association or prejudice of witness for or against a party. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; 70 C.J. 951, 962.
Griffin, Ford, Caldwell Ford, of Huntsville, for appellee.
A general averment of negligence is sufficient. Sloss-Sheffield Steel Iron Co. v. Weir, 179 Ala. 227, 60 So. 851; Western Ry. of Alabama v. McGraw, 183 Ala. 220, 62 So. 772; Davis v. Drennen Co., Department Store, 189 Ala. 683, 66 So. 642; Birmingham, E. B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; Western Ry. of Alabama v. Mays, 197 Ala. 367, 72 So. 641. New trial on ground that verdict was contrary to evidence should not be awarded unless preponderance against verdict clearly convinces the court it is unjust. City of Ozark v. Byrd, 225 Ala. 332, 143 So. 168; American Life Ins. Co. v. Anderson, 246 Ala. 588, 21 So.2d 791. Questions on cross-examination seeking to disclose fact that plaintiff carried insurance, are res inter alios acta, are not material and not proper subject of inquiry. Tarrant American Sav. Bank v. Smokeless Fuel Co., 233 Ala. 507, 172 So. 603; Wyker v. Texas Co., 201 Ala. 585, 79 So. 7, L.R.A.1918F, 142; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281.
This is a suit for property damage incident to a collision between the plaintiff's automobile and the defendant's truck. In the court below there was a judgment in favor of the former.
It is urged that the complaint, which charged simple negligence, was not sufficient in that it did not set out the quo modo of the negligence. This is not required. Under our decisions, negligence may be averred in general terms. Sloss Sheffield Steel Iron Co. v. Weir, 179 Ala. 227, 60 So. 851; Western Ry. of Ala. v. Mays, 197 Ala. 367, 72 So. 641.
Assignments of error 4, 5, 6, 7, 8, and 9 are argued in group. Each relates to the rulings of the court while the evidence was being introduced. Only assignment number 5 is properly presented for review. As to the others, counsel for defendant failed to reserve exceptions when plaintiff's objections were sustained. York v. State, 21 Ala. App. 155, 106 So. 797; Senn v. Enterprise Banking Co., 30 Ala. App. 449, 7 So.2d 777.
On cross-examination of one of plaintiff's witnesses the trial judge sustained objections to this question: "Did your company have the plaintiff's car insured?" Before counsel had ended the cross-examination of the witness, the court receded from his former ruling and allowed an affirmative answer to the question.
On direct examination the plaintiff was asked: "To refresh your recollection, did you tell me a while ago that it was your right bumper that contacted his car?" After objections were overruled, the witness did not answer. Kelley v. State, 32 Ala. App. 408, 26 So.2d 633.
There is no merit in the insistence that the court erred in overruling appellant's motion for a new trial.
The plaintiff testified that as she was approaching defendant's truck the latter, without warning to her, attempted to turn around at a point in the road where there was no intersection, and that the vehicles collided near the center of the highway.
The defendant testified that he was parked on the side of the road and in his effort to make the turn his truck was stalled. He stated that he was just a short distance out in the highway when the appellee ran into the side of his truck.
It is clearly evident that we would be out of harmony with the authorities to hold that the trial judge should have granted the motion for a new trial under the indicated tendencies of the evidence.
We have responded to each question presented for our review.
It is ordered that the judgment of the court below be affirmed.
Affirmed.
BRICKEN, P.J., not sitting.