Hoefer v. Snellgrove

ON REHEARING

WRIGHT, Judge.

Appellee contends that this Court erred in its original opinion in holding the trial court in error when it sustained appellee’s objection to the admission of the Mortality Tables in evidence. It is contended first that such ruling was not raised by sufficient assignment of error. We concede that the assignment of error under which we considered the ruling of 'the court was far from a model of .specificity, but we do not concede that it was so defective as not to substantially point out the matter referred to. It appears as follows : The court erred in * * * and in sustaining appellee’s objection to the questions of appellant’s counsel propounded to the appellant and seeking to elicit her life expectancy as well as to future damages on account of permanent injuries * * * as shown on the clerk’s transcript, pages 64 and 65.

We consider this assignment sufficiently points out the ruling of the court referred to. There is no other ruling on pages 64 and 65 of the transcript to which it could refer. It appears to us that the sufficiency of an assignment of error to bring it to our consideration for review on appeal is dependent upon our discretion and may not be governed in every case by any set rule of pleading. Since this Court was originated by the legislature and began sitting we have said we do not intend to refuse to review any matter raised on appeal which substantially points out the matter complained of and is argued with reasonable degree in brief. Blount County v. Hollingsworth, 45 Ala.App. 401, 231 So.2d 324; Watkins v. Watkins, 45 Ala.App. 450, 231 So.2d 904; Ingram v. Brookbank, 45 Ala. App. 388, 231 So.2d 164; Roberson v. Harris, 45 Ala.App. 537, 233 So.2d 96; Ward v. Ward, 45 Ala.App. 625, 235 So.2d 672; Williams v. Atchison Furniture Co., 46 Ala.App. 132, 239 So.2d 204; B’ham Slag Division of Vulcan Materials Co. v. Chandler, 45 Ala.App. 406, 231 So.2d 329. We reiterate that principle here. We do not intend to encourage laxity and lack of diligence by counsel, but we do wish to make clear that we do not intend to refuse consideration of any proper charge of error on the sole basis of the degree of compliance with purely technical matters of pleading.

Appellee further contends that even though we consider the ruling of the court • referred to, it does not amount to error on appeal for the evidence offered was properly excluded for at least two reasons. Appellee states it was objectionable since it was made in rebuttal and was not a matter for rebuttal. We do not agree that the • Mortality Tables were not proper in rebut- ■ tal. Appellee’s direct testimony had direct- • ly and by inference tended to show that appellant was not permanently injured as a result of injuries suffered in the accident. The Mortality Tables were properly rebuttal evidence, though equally admissible on direct if permanent injury was previously shown by pleading and proof.

It is further contended by appellee that when the offer was made of the Tables they were completely unidentified and thus objection was properly sustainable on that basis. We cannot agree with this contention. This argument is specious in -that the record clearly indicates that counsel for appellant stated that he' desired to introduce “that part of the ‘Mortality Table’ ■ for fifty-eight years of age, which is 17.51 years.” The court in reply stated “That is the life expectancy * * * ” Appellee’s counsel then stated “We would like to object to it. For what purpose is it intro- • duced?” There then followed a colloquy with the court and counsel with the court-stating as a basis for its ruling — in the presence- of the jury — the following:

“You haven’t got any medical testimony that I have heard to back up that allegation, and the Court is of the opinion that Dr. Honan is not sufficiently qualified to give expert opinion as to whether or not she will be permanently disabled as the proximate result, exclusively, of this accident, in question; and the Court is of the opinion the claim she will be permanently disabled and suffer the rest of her life, which according to the table, of life expectancy of 17 years, solely as the consequence of this accident and injury, the Court cannot see that has been satisfactorily proven in this case. I sustain objection to it.”

All of this involved the ruling of the court assigned as error as herein above quoted. It is this ruling we have held to be prejudicial error sufficient to reverse. There is only one mortality table admissible by statute into evidence in this state. We take judicial knowledge of Title 47, Sections 278, 279 and 280. It is clear from the quoted discussion what mortality table was referred to. Appellee expressed surprise on rehearing that we designated such tables as American Mortality Table. We suggest reading of Title 47, Section - 278 for edification.

Appellee 'further argues on rehearing that assuming there to have been sufficient assignment of error it was not supported by argument in brief. Again, though we are not rendering accolades to appellant’s counsel for his diligence in this regard, the ruling complained of was argued sufficiently to bring the basis of the complaint to our attention.

The argument of appellant in brief was sufficient to bring a response from appellee in brief. In his original brief appellee defended the action of the court in sustaining objection to admission of the Mortality Table or “life expectancy” because “there was absolutely no claim anywhere in plaintiff’s complaint which would have allowed the introduction of life expectancy as evidence. If plaintiff had desired to amend her complaint at that point to claim permanent disability, then such would most certainly have been allowed. No offer was made for such amendment. In addition, the trial court specifically ruled that there was no testimony to justify introduction of evidence which related to this plaintiff’s disability. A complete reading of the cross examination of the witness on which plaintiff relied, Dr. Honan, shows beyond any doubt that the trial court ruled correctly in this regard.”

On rehearing, in attacking this Court’s decision holding the striking on motion of paragraph 2 of plaintiff’s complaint by the trial court to be error, counsel departs in the opposite direction to his argument quoted above. There he contended the evidence as to life expectancy offered by plaintiff was inadmissible because permanent disability was not claimed in the complaint and no attempt had been made to amend and replace such allegations which were stricken on his motion.

On rehearing, he says “the striking of such allegation was not error because permanent injury was provable without allegation.”

We agree, as stated in our original opinion, that permanent injury was provable in this case without special allegation, but we do not agree that the presence of such allegation is a basis for a motion to strike.

The effect of granting the motion to strike is shown" by counsel’s argument in his original brief — he considered, and we are convinced the court considered, as shown by its ruling on the offer of the Mortality Tables, and in its oral charge to the jury, that they were not to consider any damages that had been alleged in the stricken portion of the complaint — that the complaint as it went to the jury would not support a finding of permanent injury. It is our conviction that because of these erroneous rulings of the court the jury was misled, as was counsel for appellee, and appellant was prejudiced by such rulings. The fact that such rulings were raised in one .numbered assignment of error does not require us to fail to consider them. We adhere to our original opinion.

Application for rehearing denied; opinion extended.