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This аppeal consists of a consolidation of two cases, both naming Ruth Lowery Leonard, William Herschel Bray, and Robert Prescott as defendants. One suit was initiated by Joyce Carolyn Martin and the other by her husband, William E. Martin. The plaintiffs obtained judgments in the amounts of $50,000 and $3,500 respectively. No verdict was returned against Mrs. Ruth Lowery Leonard in either case. The remaining defendants brought this appeal.
On the day on which the relevant events took place Mrs. Martin was traveling south on Alabama Highway 17, following a car driven by Mrs. Vail and being followed by a car driven by Mrs. Leonard. Behind all three cars was a truck owned by defendant Prescott and driven by defendant Bray. The highway is a two-lane highway at the point at which the accident occurred. Mr. Bray proceeded to pass all three cars and continued south. As the truck pulled back into the southbound lane in front of Mrs. Vail, she applied her brakes and pulled off the road, the result of which was a three-car collision. It was her testimony that the truck cut in and forcеd her off the road.
A witness to the accident, Mr. Steward Frizzell, testified that he was traveling north on Highway 17 when he saw the truck approaching him in his lane. Mr. Frizzell pulled off the highway and observed the first car in the southbound lane brake and skid. He heard the resulting collision but did not see it.
Mrs. Martin received neck injuries and was subsequently treated by a Dr. Fernandez. Shе testified that she had medical problems with her neck prior to the date of the accident, which at that time were treated by Dr. J.G. Galbraith.
The appellants argue: that there was not a scintilla of evidence of negligent or wanton conduct since Bray never came into contact with any of the cars and was out of thе way when Mrs. Martin tried to go around Mrs. Vail; that the acts of Bray could not have been the proximate cause of the plaintiff's (Mrs. Martin) injury since he could not have foreseen that the *243 Vail car would leave the road and stop, resulting in a collision of all three cars; that Mrs. Martin was contributorily negligent; that the negligence of Mrs. Leоnard was an independent intervening cause insulating the defendants from liability; that the trial court erred in failing to give charges as to the defense of an intervening cause; that the trial court erred in refusing to give the requested charge as to contributory negligence; that the trial court erred in charging the jury that the plaintiff could recоver for all past, present and future injuries and that the jury should not reduce the damages because of prior conditions; that the deposition testimony of Dr. Fernandez, who treated the plaintiff after the accident, and that of Dr. Galbraith, who treated the plaintiff for neck problems before the accident, were improрerly admitted as the testimony of each was based upon the opinion of the other; that the trial court erred in refusing to grant the defendants' motion for reduction of judgment; that Mrs. Martin's testimony from a summary of her work record was not the best evidence of such; that the plaintiffs' counsel made improper reference to insurance; and, that the verdict and judgment in this case are excessive.
We will consider each issue in the order in which it was raised.
Was there a scintilla of evidence to justify submission of the negligence and wantonness counts to the jury? We must answer in the affirmative. A review of the evidence reveals that there was a scintilla from which the jury could find nеgligence and wantonness. There was evidence from which the jury could infer that defendant Bray passed all three cars without a sufficient span of road in which to do so safely under the circumstances. The evidence also reveals that he did not sound his horn prior to passing the automobiles and made no effort to pull baсk into the southbound lane between any of the cars. Upon arriving at a point "pretty close" to the crest of the hill he cut back into the southbound lane. The plaintiff, Mrs. Martin, and witnesses Vail, Leonard and Jones (passenger of Leonard) testified that the truck cut in front of Mrs. Vail sharply. We have said that "wantonness" can be the doing of аn act which is likely to put persons in the position of danger with conscious disregard of known conditions of danger. Crockerv. Lee,
In determining the sufficiency of evidence to go to the jury, we of course apply the scintilla rule. The evidence, as we review it, does furnish a ". . . gleam, glimmer, spark, the least particle, the smallest trace" . . . in suppоrt of the wanton count. Kilcrease v. Harris,
The defendants argue that the evidence fails to show that Bray's conduct was the proximate cause of Mrs. Martin's injury, since the accident in which injuries were received was not a foreseeable result of his actions. The rule in this state ". . . is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow . . ." Armstrong, Admr'x v. Montgomery Street Railway Co.,
It is next contended that the negligence of Mrs. Leonard was an intervening cause, insulating the defendants from liability. In this connection, the defendants assert that the trial court erred in its refusal to give several of the defendants' requested charges relating to intervening cause. Reviewing the record, we find that the trial court gave sufficient instruction on the issue of intervening cause. ". . . The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in charges givеn at the request of the parties. . . ." ARCP, Rule 51. We find no error in refusing these charges,1 and find the issue of causation properly submitted to the jury.
The defendants next find fault with a charge given to the jury at the plaintiffs' request which would permit the jury to compensate Mrs. Martin ". . . for her past, present and future disability." The defendant maintains that this statement coupled with a further instruction that the jury should not reduce the award of damages because of a prior condition could have led the jury to believe they could compensate Mrs. Martin for injuries existing at the time of the accident. Taking the oral and written charges as a whole, we find no error. The judge merely informed the jury that they could award Mrs. Martin all damages proximately resulting from defendants' negligence even if her injuries were of a more serious nature because of a pre-existing condition. Moreover, the court gave the following requested charge:
"The Court charges the jury that the Plaintiff Joyce Carolyn Martin would not be entitled to recover dаmages for any condition or ailment which existed prior to the accident made the basis of this suit."
We find no error with respect to this charge.
The defendants next object to the deposition testimony of Drs. Fernandez and Galbraith allowed in over their objection. Dr. Fernandez treated the plaintiff subsequent to the accident and Dr. Galbraith treated those injuries existing prior to the accident.
Dr. Fernandez was asked, based upon the assumption that after her last surgery and prior to this accident that she was able to do her work, whether this accident was the causative factor of her present inability to work. He answered:
"I feel the accident was the causative factor in an individual that had some pathology in the neck already. Of course, if the individual had been doing this type work and I do have a report from Dr. Galbraith saying she had a previously healed disc lesion and had been doing well. I would say this hyper-extension type injury she suffered was the one that altered the balance enough for her not to be able to do the work she had been doing."
The defendants insist this testimony is improper since it is an opinion of his patient's condition based upon an opinion of another physician, citing Clark v. Hudson,
Prior to the trial, the plaintiffs were paid $2,208.10 by Mrs. Leonard's insurer, State Farm Automobile Insurance Company. This payment was made in the form of a "RECEIPT FOR EXPENSE ADVANCE" which contained the following language:
". . . This amount is to be credited to any final settlement or to the amount payable under our policy for any judgment which you may obtain as a result of your accident on 6-29-72 at Carrollton, Alabama."
The defendants made a motion for a reduction of judgment based on this receipt. Citing Boles v. Steel,
The facts in the instant case differ from Boles in that (1) the facts do not reveal whether State Farm insured both defendants, and (2) the judgment is not against both defendants. We find the distinction to be controlling and thus conclude that no credit is due the defendаnts.
The next issue concerns testimony given by the plaintiff using a work summary to refresh her recollection. The defendants argue that the summary was not the best evidence and that the summary could not have been used to refresh her recollection. The best evidence rule cannot preclude Mrs. Martin's testimony concerning her earnings аnd hours worked. The contents of a writing was not in issue, *246
this was merely testimony of a non-written transaction. Sayenv. Rydzewski,
The defendants argue that the work summary did not meet the requirements of a memorandum to refresh recollection under our law. A review of the record, however, reveals no objection to the use of the memo to refresh Mrs. Martin's memory. The defendants, therefore, cannot now сomplain of error. Colburn v.Mid-State Homes, Inc.,
An examination of the record reveals that the witness testified as to facts within the memorandum without objection to the use of the memo to refresh her memory. The facts to which the memo attests, therefore, were already in evidence before the memo itself was admitted. In addition, we consider the rule which allows the jury the use of such a memorandum tо help remember the testimony of the witness. We find that the presumption of injury is rebutted by the record and the error, therefore, is harmless.
The next issue concerns the following question propounded to Mrs. Martin: "Now between December 6, 1971 when you returned to work following your surgery and June 29th. of '72 when this accident happened were you ablе to do this work?" The defendants argue that this question called for a conclusion and thus invaded the province of the jury. We disagree. A lay witness may testify in Alabama as to his inability to do work.St. Louis S.F.R.R. Co. v. Savage,
The following statement was made by plaintiffs' counsel during closing argument: "`I don't ask you to hurt anybody and you won't. You return fair compensation to her and that is $200,000.00. You won't hurt anyone.'" There is no question but that the issue of a defendant's insurance against liability is a forbidden fact in the trial of a case, unless an exception permits its introduction. See generally Comment, EVIDENCE: REVEALING THE EXISTENCE OF DEFENDANT'S LIABILITY INSURANCE TO THE JURY, 6 Cumb.L.Rev. 123 (1975). Nor do indirect references escape the prohibition of this evidentiary rule. Thorne v.Parrish,
In the instant case, however, the objection to the statement was sustained. No motion for mistrial was made. It is the defendants' position that no motion for mistrial is necessary where such a prejudicial issue is injected into a case. The rule to which the defendants refer is found in Anderson v.State,
"An exception to the general rule requiring appropriate objection or motion invoking corrective instruction or action by the trial court is where the remark or argument of counsel is so grossly improper and highly prejudicial to the opposing party as that neither retraction *247 nor rebuke by the trial court would have destroyed its sinister influence . . ."
We are not of the opinion that the statement in the instant case is so strongly prejudicial as to be beyond cure by the trial court. We also recognize that the trial court has a great deal of latitude in determining the prejudicial effect of statements made in argument. Central of Georgia Railway Companyv. Phillips,
Since the statement was of such a nature that it could be and was cured by the trial court, and since no motion for mistrial was made, thеre is no error for this court to consider. See, e.g., Montana v. Nenert, (Mo.App. 1950),
The final argument of the defendants is that the verdict was excessive. The authority of the courts to disturb the verdict of the jury on the ground of excessiveness is to be exercised with great caution and discretion. Central of Georgia RailwayCompany v. Phillips, supra. The jury verdict will not be disturbed ". . . unless so excessive or so grossly inadequatе as to indicate passion, prejudice, corruption or mistake."Montgomery City Lines v. Davis,
The evidence relating to Mrs. Martin's injuries and damages does not convince us that the verdict was excessive. There was proof of medical expenses incurred and future medical expenses are anticipated. There was also evidence that Mrs. Martin would be unable to continue her employment in the future or to engage in any similar employment; and that she could not do her normal housewоrk. There was also evidence of wantonness, previously discussed, to justify punitive damages.
We find no error to reverse.
AFFIRMED.
HEFLIN, C.J., and MERRILL, MADDOX and JONES, JJ., concur.