Opinion · Alabama Court Opinions
AMERICAN PAMCOR, INC. v. EVANS, 48 Ala. App. 751 (1972)
Am. PAMCOR, INC., a Corp. & James Clyde Clark v. Sam EVANS., 263 So. 2d 155 (Court of Civil Appeals of Alabama. 1972)
- Type
- Opinion
- Court
- Alabama Court Opinions
- Jurisdiction
- Alabama
- Date
- 1972-05-31
- Topic
- general
AMERICAN PAMCOR, INC. v. EVANS, 48 Ala. App. 751 (1972) 263 So.2d 155 AMERICAN PAMCOR, INC., a Corp. and James Clyde Clark v. Sam EVANS. 6 Div. 150.Court of Civil Appeals of Alabama. May 31, 1972.
Citator
UpLaw has not yet analyzed AMERICAN PAMCOR, INC. v. EVANS, 48 Ala. App. 751 (1972). The absence of a flag is not a finding that it is good law.
AMERICAN PAMCOR, INC. v. EVANS,48 Ala. App. 751(1972)
263 So.2d 155
AMERICAN PAMCOR, INC., a Corp. and James Clyde Clark v. Sam EVANS.
6 Div. 150.
Court of Civil Appeals of Alabama.
May 31, 1972.
Counsel should be careful not to say or do anything to cause the jury to believe that the defendant is covered by insurance and when he oversteps the bounds of propriety he is guilty of misconduct and the Court should declare a mis-trial. Gwin v. Church,272 Ala. 674,133 So.2d 880; Pierson v. Birmingham Transit Co.,246 Ala. 350,87 So.2d 457; Robinson v. Wada, (Dist.Ct.App.Cal. 1935)51 P.2d 171,10 Cal.App.2d 5. Any evidence which contains a mere gleam, glimmer, spark, the least particle, the smallest trace or a scintilla of evidence must be received in evidence on the proof of any issue involved in the case and to exclude such evidence is reversible error for the reason that such gleam, glimmer, spark or least particle might result in a verdict in favor of the party offering it. South Highlands Infirmary v. Camp,279 Ala. 1,180 So.2d 904; Tyler v. King,287 Ala. 162,249 So.2d 821. A court cannot either at the instance of counsel or ex mero motu recall a jury and give further instructions containing new and substantive charges where a case has been tried, argued and submitted on any theory other than that contained in the original charge. Prosser v. Henderson,11 Ala. 484; Jenkins v. Stephens,64 Utah 307,231 P. 112.
Hare, Wynn, Newell Newton, Birmingham, for appellee.
Each party has the right to examine jurors as to their qualifications, interests, or bias that would affect the trial of the case, and shall have the right, under the direction of the court to examine said jurors as to any matter that might tend to affect their verdict. Code of Alabama, Recompiled 1958 Title 30, Section 52; Mitchell v. Vann,278 Ala. 1,174 So.2d 501, Jury 83(1). Evidence, the effect of which would be largely prejudicial and of little probative value, is properly excluded and the admissibility is left largely to the discretion of the trial judge. Vol. 29 Am.Jur.2d, Evidence, Section 260, p. 310; Vol. 31A C.J.S. Evidence § 159, pages 436, 437; Wigmore on Evidence, 3rd Edition, Section 1904, p. 574. Where a jury requests additional instructions after submission to them of the case and after they have deliberated, it is proper for the Court to comply with the request and give any further instructions which would have been proper when the court first charged the jury. Watt v. Combs,244 Ala. 31,12 So.2d 189; Vol. 89, C.J.S. Trial, § 475, page 119; Vol. 53, Am.Jur.Trial, Section 942, page 667. Evidence of an oral statement made by another in the presence of a party is not admissible if the nature of the statement and the circumstances under which it was made would not naturally call for a denial. Law of Evidence in Alabama, 2nd EditionPage 752by J. Russell McElroy, Vol. 2, Section 193.01, p. 44; Scott v. State,249 Ala. 304,30 So.2d 689; Moore v. State,261 Ala. 578,75 So.2d 135.
Defendants below appealed and the cases were consolidated on appeal. However, since Sam Evans' judgment was less than $10,000, the appeals were separated. The appeal in the Sam Evans case was transferred to this court by the Supreme Court under provisions of Tit. 13, § 111 (11), Code of Alabama 1940, as amended by Act No. 987, Acts of Alabama 1969, page 1744.
The same briefs and transcript as were submitted and considered by the Supreme Court in its case No. 6 Div. 863, styled American Pamcor, Inc., a Corp., and James Clyde Clark v. Mabel Clara Evans, are now submitted to this court as case No. 6 Div. 150, styled American Pamcor, Inc., a Corp., and James Clyde Clark v. Sam Evans. The assignments of error are the same in each case.
The Supreme Court has published its opinion,288 Ala. 416,261 So.2d 739in case No. 6 Div. 863 on April 27, 1972. We consider it dispositive of all issues and errors raised by the appeal in this case. We, therefore, on the authority of the decision of the Supreme Court of Alabama in case No. 6 Div. 863, affirm the judgment of the court below in this case.
Affirmed.
BRADLEY and HOLMES, JJ., concur.