This is an appeal by defendant from a judgment in favor of the plaintiff in an action at law for damages for personal injury allegedly sustained by the plaintiff as the result of being thrown from or falling out of an ambulance operated by defendant.
Plaintiff worked at a barroom and dance hall from 4 p. m. to 2 a. m., except Saturdays when she got off at midnight. On the
In response to a call, defendant sent an ambulance and plaintiff, apparently unconscious, was placed in it to be taken to a hospital. There was a driver for the ambulance but no other attendant. On the way to the hospital plaintiff, in some unexplained manner, left the ambulance and suffered bruises and abrasions which later became infected and required hospitalization. The driver did not testify how plaintiff left the ambulance and neither did she. When the driver heard a door slam he discovered plaintiff's absence from the vehicle, stopped it, and saw plaintiff some 75 to 100 yards behind him, in the road 4 or 5 feet from the side of the pavement.
The complaint consisted of one count. Defendant filed a plea of the general issue and two pleas of contributory negligence. Demurrer was sustained to the pleas of contributory negligence, and the case was tried on the complaint and the plea of not guilty.
Defendant argues assignments of error relating to admission of evidence and refusal of requested charges.
The evidence complained of tended to show that a Mr. Powell, apparently acting as a defendant, had visited plaintiff and had made certain declarations against the interest of defendant. Assignment 4 recites:
The record shows that the two answers quoted in Assignment 4 were made by Rochelle Winters, the daughter of plaintiff, testifying on direct examination as follows:
Defendant contends that admitting the quoted testimony in evidence was error for that the statement attributed to Powell: (1) is an admission of matter of which the declarant did not have knowledge and (2) is an offer to compromise.
Before discussing defendant's contentions, we note that the defendant is described in the complaint and in the summons as "Powell Ambulance Service, By Whatever Name Legally Known." Summons was served on "Arthur Powell, Jr., as co-owner." We understand that the Mr. Powell who allegedly made the statement is the father of Arthur Powell, Jr. The complaint does not disclose whether the defendant is a corporation, partnership, or an individual proprietorship. To the manner of designating the defendant, defendant has raised no objection in either the trial court or this court. The declarant, Mr. Powell, who is supposed to have made the statements to which the witness testified, is not named in the complaint as a defendant. Powell did not testify. From the evidence, however, we understand that he was one of the owners of the defendant company and that his statements are to be regarded as statements made by the defendant. Defendant does not argue that the statements were inadmissible because not made by a party to the suit, and, therefore, we have considered them as being made by the real party in interest as defendant.
We are of opinion that Assignment 4 is without merit because it embraces two rulings of the trial court and one of the rulings is not erroneous.
Defendant did not object to the first question until after it had been answered. Defendant did not move to exclude the answer but merely objected to it. Assuming arguendo, however, that the first answer was inadmissible, should have been excluded, and that the court erred in failing to exclude it, that does not show that both of the rulings of the court which are combined in Assignment 4 were erroneous.
When defendant moved to exclude the second answer on the ground that it showed an offer of compromise, the court promptly and emphatically instructed the jury that: "The Court does not want to permit to come into the evidence of this case any evidence bearing on an alleged compromise. * * * the Court is * * * directing the Jury that that part is excluded * * *. With that statement by the Court, the objection is overruled."
Thus it appears that the court granted defendant's motion to exclude the testimony showing an offer of compromise. The court did all that defendant asked the court to do with respect to the second answer. Consequently, we are of opinion that no error is shown as to the admission of the second answer in evidence.
An assignment of error which embraces more than one ruling must, to be sustainable, be good as to all. Lane v. Housing Authority of City of Elba, 270 Ala. 383, 118 So.2d 725, and numerous authorities
Assignment 5 asserts that the court erred in permitting the plaintiff to testify with reference to the statement attributed to Mr. Powell as follows:
"The Court: I overrule the motion.
"Mr. Johnston: Exception."
As was pointed out by the court, neither the objection to the question nor the motion to exclude advised the court of the specific ground of objection which defendant sought to interpose after the court had ruled. The general objection only, without stating the grounds relied on, operated as a waiver of the specific objection, as for an offer to compromise. Powell v. Pate, 30 Ala.App. 10, 1 So.2d 36. Assignment 5, therefore, is not sustained.
Assignment 10 asserts error in refusing defendant's requested Charge 6 which recites as follow:
The only plea on which the case was tried was the general issue. Charge 6 is an instruction upon the question of plaintiff's contributory negligence. That question was not presented by the pleadings on which the case was tried and, therefore, Charge 6 was refused without error. Kansas City, Memphis & Birmingham R. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262; Adams v. Crimm, 177 Ala. 279, 58 So. 442; Seaboard Air Line Ry. Co. v. Pemberton, 202 Ala. 55, 79 So. 393; Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228.
Defendant's refused Charge J was fairly covered by the oral charge and given Charges A and D.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.