Norris v. PresleyNorris v. Presley
Lead Opinion
This is an appeal from a judgment entered by the Circuit Court of Covington County. The appellant-plaintiff Norris sought recovery in a negligence action against the appellees-defendants for injuries received when the car he was driving struck the rear-end of a pulpwood truck parked partially on the roadway. The trial was before a jury which returned a verdict for the appellees-defendants. After judgment was entered, the appellant-plaintiff filed a motion for a new trial which, after a hearing, was overruled. Hence the appeal.
The facts giving rise to this appeal are not complex. On January 4, 1972, the plaintiff was driving his automobile on Highway 20 south of Opp, Alabama at a speed of about 50 m.p.h. It was dark, and misting rain. Earlier in the afternoon a loaded pulpwood truck operated by defendant Ainsworth was left parked beside the
The complaint, as last amended, charges simple negligence and wantonness against defendants Homer and Hollis Presley and their alleged agent, George Ainsworth.
The plaintiff made 11 assignments of error; however only assignments 1, 3, 4, 8, 10 and 11 were argued. Those not argued are of course waived, e.g. State v. Farabee,
Under assignment 8, plaintiff argues that the trial court erred in admitting certain testimony of defendant Ainsworth concerning an alleged conversation with the plaintiff in which Ainsworth told plaintiff that he (Ainsworth) was not an employee of Presley Timber Company.
Finally under assignments 10 and 11, the allegation is made that the court erred in refusing two charges requested by the. plaintiff which are claimed to state the law of this state with respect to agency.
The plaintiff asserts that the “failure of the jury foreman Boothe to disclose the ‘relationship’ was a failure to truthfully answer or properly respond to the question propounded on voir dire and it resulted in prejudice to the plaintiff.” This assertion should be examined in two steps. First, is the juror related “by blood or marriage” to the defendant Homer Presley, and second, was there probable prejudice to the plaintiff?
The legal effect of the court’s question was whether any member of the jury was related to any defendant by consanguinity (by blood) or by affinity (by marriage), the relationships recognized by the law as “family relationships”. In Duke v. State,
“ ‘Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. But there is no affinity between the blood relatives of the husband and the blood relatives of the wife.’ The juror Bryant being a*158 cousin of the step-father of the deceased was related by affinity to the mother of deceased, but bore no relation to deceased himself, and was a competent juror.” (Emphasis added)
Thus in the instant case, the marriage between Elaine Presley and Steve Boothe did not cause Homer Presley, and Robert Boothe to become related by either blood or marriage. They are not related at.all in the eyes of the law. It was not reversible error for the juror to have remained silent in the face of the trial court’sdnquiry.
This court has held that the question as to whether or not a complaining party was probably prejudiced by a juror’s failure to answer properly a question on voir dire is a matter primarily within the discretion of the trial court. In the absence of a showing of an abuse of discretion the ruling of the trial court thereon will not be reversed. Freeman v. Hall,
Plaintiff’s next argument is that the court erred by admitting statements by defendant Ainsworth as to his employment relationship with the Presley brothers. Defendants point out correctly that these statements were admitted not as proof of Ainsworth’s agency (or lack of it) but to show that an alleged conversation between plaintiff Norris and defendant Ainsworth took place in which Norris allegedly informed Ainsworth that Norris would not sue Ainsworth if Ainsworth would testify that he was an employee of Presley. See, e.g., Bryson v. State,
Plaintiff’s last contention is that the trial court erred in refusing the following charges:
“Plaintiff’s Requested Charge Three: The Court charges you members of the jury that it is the reserved right of control rather than its actual exercise that is the true test of whether the relation between defendant, George Jackson Ainsworth and defendants, Homer Presley and Hollis Presley, individually and as partners, trading and doing business as Presley Timber Company is that of an independent contractor or of employer and employee.” (Tr. p. 205-6).
“Plaintiff’s Requested Charge Four: The Court charges you members of the jury that defendant, George Jackson Ainsworth, is an employee or agent of defendants, Homer Presley and Hollis Presley, individually and trading and doing business as Presley Timber Company if they retained the right to direct the manner in which the work was to be done.” (Tr. p. 206).
In his oral charge, the trial court charged as follows:
“There being a dispute in the evidence in this case, you will have to determine from the facts whether or not at the time and place mentioned in the complaint, the defendant Ainsworth was an agent of the defendant Presleys. The test that our courts say that should be applied to determine whether or not one is an agent, servant or employee of another, is whether or not the employer, or the person said to be the employer, has*159 the reserved right of control, that is, the right to tell the other one what to do; not necessarily that he did tell him, but he had the right to tell him at the time and place. And that is the test that our courts have said should be applied to determine whether or not one was an employee, agent or servant of another. So you look to the facts in this case and by your verdict you will determine whether or not the defendant Ainsworth was an agent, servant or employee of the defendant Presleys.”
The substance of the refused charges is that the real test of agency is the reserved right of control, or right to direct the alleged agent. This rule was amply covered in the oral charge set out above. This court has held on many occasions that refusal of the trial court to give requested charges is not error where the court’s oral instructions covered the same principles as the refused charge, e.g. Gilmore Industries, Inc. v. Ridge Instrument Co.,
From the foregoing it would appear that the judgment of the trial court was without error and is thus due to be affirmed.
Affirmed.
Concurrence Opinion
(concurring specially) .
I concur in the result. In my opinion the verdict of the jury was not sustained by the preponderance of the evidence, and the motion for a new trial should have been granted by the trial court. However, on appeal to this court the appellant did not argue in brief or oral argument this point. Under our rules, an assignment of error not argued is deemed waived.