Opinion
4 Div. 14.
January 28, 1970.
Appeal from the Circuit Court, Houston County, Keener Baxley, J.
Lee McInish and William G. McKnight, Dothan, for appellant.
A jury instruction under the doctrine of res ipsa loquitur which places the burden of proof on the wrong party is erroneous. Nelson v. Lee, 249 Ala. 549, 32 So.2d 22; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Schroble v. Lehigh Valley Railway Co., (C.A.2d N.Y.) 62 F.2d 993, 32 N.C. C.A. 729; Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65 So.2d 169. A conflict in the evidence as to defendant's due care causes the doctrine of res ipsa loquitur to be "functus officio", or a jury question. Lawson v. Mobile Elect. Co., 204 Ala. 318, 85 So. 257; Birmingham Electric Co. v. Davis, 244 Ala. 338, 13 So.2d 888; Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 So.2d 912; Bruner v. Van Hoof, 4 Wis.2d 459, 90 N.W.2d 551; Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; L. N. R. Co. v. Glick, 214 Ala. 303, 107 So. 453. A written charge requested on a theory of the case which is unsupported by the evidence, or implying that no evidence opposed the theory, is erroneous. So. Railway Co. v. Clark, 203 Ala. 248, 82 So. 516; Tennessee Coal, Iron Railway Co. v. Gandy, 160 Ala. 594, 49 So. 369. A written instruction undertaking to state material facts necessary for recovery, but omitting such facts, is fatally defective. So. Railway Co. v. Lawler, 11 Ala. App. 241, 65 So. 857. The doctrine of res ipsa loquitur does not dispense with the proof of proximate causation. Ala. Power Co. v. Bryant, 226 Ala. 251, 148 So. 602; Sullivan v. Ala. Power Co., 246 Ala. 262, 20 So.2d 224; Cook v. U.S., 163 F. Supp. 784 (D.C.Ala., 1958).
L. A. Farmer, Jr., J. R. Herring, Dothan, for appellee.
To invoke the doctrine of res ipsa loquitur, it is necessary for the plaintiff to prove an injury which, in the ordinary course of things, does not occur in the absence of negligence. It is not necessary for the plaintiff to offer proof excluding all other possible causes of injury. McClinton v. McClinton, 258 Ala. 542, 63 So.2d 594; Smith v. Kennedy, 43 Ala. App. 554, 195 So.2d 820; Cooper v. Agee, 222 Ala. 334, 132 So. 173. When the plaintiff proves the essential elements invoking the doctrine of res ipsa loquitur, a legal presumption of negligence arises. Ala. Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231; Smith v. Kennedy, 43 Ala. App. 554, 195 So.2d 820. The doctrine of res ipsa loquitur is functus officio only when the defendant has offered uncontradicted and undisputed rebuttal evidence showing his exercise of due care. Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 So.2d 912; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257. A requested charge stating that on proof of the elements giving rise to the doctrine of res ipsa loquitur, negligence is presumed and the burden is on the defendant to reasonably satisfy the jury that he was not guilty of any negligence, is without reversible error. Florence Coca-Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65 So.2d 169.
This action arose out of a highway accident wherein a farm trailer loaded with peanuts being pulled by a pickup truck became disengaged from the truck. As a result this trailer left the highway and struck plaintiff's-appellee's gasoline tanks in front of his combination store-house building. The gasoline in the tanks ignited and partially burned appellee's building.
Plaintiff's-appellee's complaint contained only one count for simple negligence and demanded $20,000.00 damages to plaintiff's building.
At the conclusion of the evidence and arguments, the court proceeded to charge the jury that the doctrine of res ipsa loquitur was applicable to this case. The court further defined the doctrine of res ipsa loquitur to the jury. The defendant duly and legally reserved an exception. The court gave three written charges to the jury at the request of the plaintiff defining the doctrine of res ipsa loquitur. The court refused to give defendant's requested Charge No. 1.
A jury verdict was rendered in favor of the plaintiff-appellee in the amount of $11,400.00 plus costs.
Thereafter, on March 25, 1969, the defendant filed his motion for a new trial and an order was entered setting a date for hearing. A hearing was held on such motion on April 3, 1969, when same was argued and submitted. The court entered an order on April 3, 1969, that the damages awarded plaintiff in this cause were excessive by the sum of $1,900.00 and that the defendant's motion for a new trial was granted unless plaintiff remit all damages in writing in excess of $9,500.00 within twenty days. Plaintiff filed a written remittitur as required by the court on April 14, 1969. Defendant's motion for new trial was thereafter denied on April 21, 1969.
This appeal is taken from the adverse judgment of the court below and also from the trial court's conditional denial of defendant's-appellant's motion for new trial.
Plaintiff's Assignment of Error No. 2 says that the trail court erred in stating to the jury in its oral charge that the doctrine of res ipsa loquitur was applicable as the law in this case as follows: (Then quoting several paragraphs from the oral charge of the court), to which portion of the court's oral charge the defendant duly excepted, before the jury retired, as follows:
" 'If the Court please, I would like to except to that portion of the Court's oral charge, in which the Court stated, that the Court is of the opinion this case comes under the doctrine of res ipsa loquitur and all other words and phrases used by the Court in charging the jury as to the doctrine of res ipsa loquitur.' "
We think this exception must fail because it was too general. This was an exception of the "shotgun" variety that availeth the exceptor nothing.
In New York Times Co. v. Sullivan, 273 Ala. 656, 681, 144 So.2d 25, 45, an exception to the court's oral charge was attempted in the following language:
" 'Lawyer Gray: Your Honor, we except to the Court's charge dealing with ratification as well as the Court's charge in connection with the advertisement being libelous per se in behalf of each of the individual defendants.'
"The above attempted exception was descriptive of the subject matter only, and is too indefinite to invite our review. (Citations omitted.)"
In McClendon v. State, 278 Ala. 678, 680, 180 So.2d 273, 275, the court said:
"The record discloses that the only exception to the court's oral charge is as follows:
" 'If the Court please, we want to except to that portion of the Court's oral charge in which the Court stated that the measure of damages is the value of the entire tract affected before the taking and the value of the entire tract affected after — * * *.'
"The proper way to reserve an exception to a part of the court's oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus specifically bring to the attention of the trial court and this court the matter and ruling of which complaint is made. Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228. We are of the opinion that the exception reserved to the court's oral charge in this case was insufficient to present for review appellants' criticisms of that part of the oral charge made the basis of assignment of error 12."
See also Birmingham Ry., Light Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Birmingham Ry., Light Power Co. v. Friedman, 187 Ala. 562, 65 So. 939; Bean v. Stephens, 208 Ala. 197, 94 So. 173.
Appellant's Assignment of Error No. 3 (quoting from appellant's brief) "covers a portion of the same oral charge whereby the court attempts to instruct the jury as how to apply the doctrine of res ipsa loquitur to the instant case." (Emphasis supplied.) But appellant reserved only one exception to the trial court's oral charge and that was in the "shotgun" language hereinabove quoted. So, we hold that appellant's Assignment of Error No. 3 is without merit.
Assignment of Error No. 5 sets out as error the giving of plaintiff's requested written Charge No. 2, as follows:
"The Court charges the jury that if you are reasonably satisfied from the evidence in this case that, before the injury to the Plaintiff's property, the trailer which was being operated by the Defendant, in connection with his automobile, was under the exclusive control of the Defendant, and that the Plaintiff was without fault in bringing about the injury to his property, and that the injury, in the ordinary course of things, would not have occurred if the Defendant had used proper care, then, as a matter of law, the injury arose from the Defendant's want of care, and the Defendant was guilty of negligence in this case."
It is our opinion that the giving by the learned trial court of this charge requested by plaintiff constituted error to reverse. The charge practically amounted to the giving of the affirmative charge with hypothesis for the plaintiff, in that in effect it charged that if the plaintiff had established the elements necessary to bring into play the doctrine of res ipsa loquitur, "then, as a matter of law, the injury arose from the Defendant's want of care, and the Defendant was guilty of negligence in this case.", and it charged out of the consideration of the jury the defendant's evidence tending to rebut the prima facie case of negligence raised by plaintiff's evidence. Also, as pointed out in appellant's excellent brief, the charge was erroneous in that it did away with the requirements of proximate causation in order for plaintiff to recover for negligence.
The Supreme Court of Alabama in Birmingham Electric Co. v. Davis, 244 Ala. 338, 341, 13 So.2d 888, 890, in discussing the doctrine of res ipsa loquitur, said:
" 'There are cases holding the presumption expressed by the maxim to have weight as evidence, but the best-considered authorities hold, we think, that it serves in the place of evidence only until evidence to the contrary has been adduced; that when evidence to the contrary has been adduced the maxim has spent its force and served its purpose. * * *' "
Whether appellant's testimony that he tied the coupling pin with wire was sufficient to show due care on his part was strictly for the jury to decide. Plaintiff's requested Charge No. 2 took that issue away from the jury.
We pretermit discussing the other assignments of error. However, for the benefit of the trial court and the attorneys on another trial, we express the opinion that the trial court was correct in holding that plaintiff's evidence was sufficient to bring the case under the doctrine of res ipsa loquitur and to make it necessary that defendant go forward with the evidence, but not that the burden of proof ever shifted to the defendant.
For the error pointed out the judgment of the trial court is
Reversed and remanded.