This is the second and final post in a two-part series on practical rules of evidence by Christian & Small Associate W. Steven Nichols. Click here to read Part I.
Several years ago, Bobby Black, one of the finest trial lawyers Alabama has ever known, prepared a handout for a talk at the Alabama Defense Lawyers Fall meeting in Birmingham titled “Practical Rules of Evidence that You Know But Don’t have a Citation For.” As a tribute to Bobby and as a commemoration of his years of service to the Bar, this is an excerpt of an update to his earlier work. You can find more updates in Part I of this blog series.
Part II: Updates on Black’s Original Categories of Evidence:
Commenting on Opponent’s Failure to Call a Witness
The general rule is when a witness is accessible to both parties, or his evidence would be cumulative, neither party can comment on his absence. Birmingham v. Levens, 200 So. 888 (Ala. 1941).
The fact that either party can subpoena a potential witness does not make that witness automatically “equally accessible.” See Harrison v. Woodley Square Apartments, Ltd., 421 So. 2d 101 (Ala. 1982).
When the testimony of the witness would favor one party over the other, the witness is not “equally accessible.” See Edwards v. Allied Home Mortg. Capital Corp., 962 So. 2d 194 (Ala. 2007). See also Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254 (Ala. 1982) (Plaintiff allowed to comment on absence of witness, a physician, in a case where defendants were also physicians because it was “not unreasonable to conclude that he would be friendly toward defendants and unfriendly toward plaintiff.”); Harrison v. Woodley Square Apartments, Ltd., 421 So. 2d 101 (Ala. 1982) (testimony of plaintiff ’s friend would probably favor plaintiff ).
Pleas of Guilty or Acquittal in Criminal Trial
When a defendant pleads guilty to a criminal offense, and afterwards is sued in a civil action for an identical offense, the guilty plea is admissible as an admission or declaration against interest. See Motley v. Page, 34 So. 2d 201 (Ala. 1948); Pritchett v. Freeman, 54 So. 2d 314 (Ala. Civ. App. 1951).
Judgment or acquittal in a criminal case is not admissible in a civil case. See Bredeson v. Croft, 326 So. 2d 735 (Ala. 1976). See also Crummie v. Tuscaloosa County Civil Serv. Bd., 630 So. 2d 455 (Ala. Civ. App. 1992) (“An acquittal in a criminal case is not dispositive of the issues presented in a civil action arising out of the same facts.”).
A plea of nolo contendre in a criminal case is not admissible in a civil case. See State ex rel. Woods v. Thrower, 131 So. 2d 420 (Ala. 1961); Fidelity-Phenix Fire Ins. Co. v. Murphy, 166 So. 604 (Ala. 1936).
Proof of Agency – Presumption
- Defendant owned vehicle. See Schoenith, Inc. v. Forrester, 69 So. 2d 454 (Ala. 1953).
- License Plate issued to Defendant. See Duke v. Williams, 32 So. 2d 362 (Ala. 1947).
- Defendant’s name painted on vehicle. See Credeur v. J. B. Hunt Transp., 655 So. 2d 933 (Ala. 1994); Barber Pure Milk Co. v. Holmes, 84 So. 2d 345 (Ala. 1955).
- Defendant lessee had unreserved use of vehicle. See Sears, Roebuck & Co. v. Hamm, 81 So. 2d 915 (Ala. Civ. App. 1955).
Burden then shifts to defendant to offer evidence to rebut this administrative presumption. See Bishop v. Fordham, 92 So. 2d 3 (Ala. 1957). Note that agency cannot be proved by declarations of the alleged agent. See Greenwald v. Russell, 172 So. 895 (Ala. 1937).
Calling Hostile Witnesses
A party may not call a witness and immediately cross-examine him on the theory that he is a hostile witness. “There must be an avowed surprise before one’s own witness may be subjected to cross-examination by the party calling him. A party will not be permitted to put a witness on the stand knowing that his testimony will be adverse and then claim surprise in order to impeach such witness.” Cloud v. Moon, 273 So. 2d 196 (Ala. 1973).
Leadings questions are permitted as a matter of right when a party calls a hostile witness or adverse party. See Ala. R. Evid. 611(c).
“The characterization of a witness as adverse or hostile is not dependent upon the unfavorable or ‘hostile’ nature of his testimony, but rather upon the characterization of the nature and manner of the witness himself.” Wiggins v. State, 398 So. 2d 780 (Ala. Crim. App. 1981).
Who is hostile:
- Father. See Waller v. State, 4 So. 2d 911 (Ala. 1941).
- Son. See Little v. Sugg, 8 So. 2d 866 (Ala. 1942).
- Employee. See Stauffer Chemical Co. v. Buckalew, 456 So. 2d 778 (Ala. 1984); Alabama Power Co. v. Talmadge, 93 So. 548 (Ala. 1921).
- Wife. See Barnes v. State, 14 So. 2d 242 (Ala. Civ. App. 1943).
- Party. See Trahan v. Cook, 265 So. 2d 125 (Ala. 1972); Morris v. McClellan, 45 So. 641 (Ala. 1908).
- Former employee hostile. See Stauffer Chemical Co. v. Buckalew, 456 So. 2d 778 (Ala. 1984).
- Former employee not hostile. See Mutual Ben. Health & Acci. Ass’n v. Bradford, 7 So. 2d 20 (Ala. 1942).
Appoint Guardian Ad Litem
A judgment against an infant brought within the jurisdiction of the court by proper service of process is not void and subject to collateral attack for want of a guardian ad litem to represent and protect the infant’s interests, but such judgment is erroneous and subject to reversal on appeal. See Doss v. Terry, 54 So. 2d 451 (Ala. 1951); Bell v. Bannister, 101 So. 653 (Ala. 1924). The infant must have a guardian ad litem in all important stages of the action. See Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co., 213 So. 2d 814 (Ala. 1968).
Recovery of Minor’s Medical Expenses
Medical and hospital expenses of a minor are obligations and debts of the father. Where the father has incurred or paid them, he has the right to bring a separate suit for them. Where the father, however, brings a suit as next friend of his minor child, he waives in the child’s favor his right to recover the expenses of medical and hospital treatment, and is thereafter estopped to claim them in a separate suit. See Cabaniss v. Cook, 353 So. 2d 784 (Ala. 1977).
An unemancipated minor cannot recover for medical expenses unless he is dependent on his own resources for a livelihood at the time of the accident. See Doullut & Williams v. Hoffman, 86 So. 73 (Ala. 1920).
Minor’s Suit Against Parent
Under the parental immunity doctrine, an unemancipated minor is precluded from recovering against his parent in a tort action for personal injuries. See Owens v. Auto Mut. Indem. Co., 177 So. 133 (Ala. 1937).
Sexual abuse cases are a recognized exception to doctrine of parental immunity. See Hurst v. Capitell, 539 So. 2d 264 (Ala. 1989).
Allowing Unlicensed Minor to Operate Vehicle
Any person who allows a child under sixteen years old to operate a motor vehicle is negligent as a matter of law. See Chiniche v. Smith, 374 So. 2d 872 (Ala. 1979).
Negligent Entrustment
Even if a parent does not own the vehicle, the parent can be held liable for negligent entrustment if the parent exercises sufficient control and dominion over the vehicle. See Land v. Niehaus, 340 So. 2d 760 (Ala. 1976).
No coverage under homeowner’s policy for a claim for negligent entrustment of an automobile. See Cooter v. State Farm Fire & Casualty Co., 344 So. 2d 496 (Ala. 1977).
Predicate to Introduce Prior Testimony of Absent Witness
“If a witness who has given testimony in the course of a judicial proceeding between the parties litigant, before a competent tribunal, subsequently dies; or becomes insane; or after diligent search is not to be found within the jurisdiction of the court, or if that which is equivalent be shown, that he has left the state permanently, or for such an indefinite time that his return is contingent and uncertain, it is admissible to prove the substance of the testimony he gave formerly.” Williams v. Calloway, 201 So. 2d 506 (Ala. 1967).
Damages
The measure of damages for injury to property is the difference between the reasonable market value before and after the injury. However, evidence of the amount required to make necessary repairs to damaged property (e.g., automobile) is a factor which a jury is authorized to consider in arriving at the true measure of damages. Crump v. Geer Bros., Inc., 336 So. 2d 1091 (Ala. 1976).
The measure of damages for breach of warranty of habitability is “the difference in the reasonable market value of the house in the condition at the time it was purchased and the reasonable market value of the house as it would have been had the house been constructed substantially according to the contract or warranty.” S.S. Steele & Co. v. Pugh, 473 So. 2d 978 (Ala. 1985).
An award of only $10,500 to plaintiff in action for personal injury in an automobile accident had to be set aside when undisputed evidence was that lost wages and medical expenses exceeded $10,500. See Bibb v. Nelson, 379 So. 2d 1254 (Ala. 1980). But see Mitchell v. Imms, 488 So. 2d 817 (Ala. 1986) (holding that the rule in Bibb did not apply where “there was disputed evidence as to the extent of [plaintiff ’s] injuries, the time at which he could have returned to work, and the amount he would have earned had he been working.”).
New Categories of Evidence:
Witnesses Commenting on the Testimony of Another Witness
“A question to a witness which asked whether another witness has testified falsely is improper because it calls for a conclusion of the witness and invades the province of the jury to determine the veracity of the witnesses’ testimony.” Clevenger v. State, 369 So. 2d 563 (Ala. 1979).
Testimony from Former Trial
Under the “rule of compulsory completeness,” if testimony from a former trial is introduced, the entirety of it must be received in evidence. See Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254 (Ala. 1982).
Evidence of a Party’s Wealth
Evidence of defendant’s size, wealth or financial condition is inadmissible. This rule applies in cases involving both compensatory and punitive damages. This rule also applies in wrongful death actions. See Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala. 1988).
However, this general exclusionary rule does not apply if the party’s wealth or poverty is relevant to a material issue in the case. Furthermore, it is generally recognized that a party may inquire into an opposing party’s wealth on cross-examination or in rebuttal if that opposing party “opens the door” to such an inquiry. Marks v. Intergraph Corp., 740 So. 2d 1066 (Ala. 1999).
Juror Substitution
In civil cases under Ala. R. Civ. P. 47(b), once jury deliberations begin, an alternate juror cannot be substituted. See Lloyd Noland Hosp. v. Durham, 906 So. 2d 157 (Ala. 2005).
The posts in this series were excerpted from Nichols’ “Practical Evidence Rules That You Know But May Not Have A Citation For” article in the fall issue of the Alabama Defense Lawyers Association Journal magazine. Click here for the full article.