State Farm Mut. Auto. Ins. Co. v. Wood, [Ms. SC-2022-0901, Oct. 20, 2023] __ So. 3d __ (Ala. 2023). The Court (Bryan, J.; Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur) affirms a judgment entered against State Farm after a jury verdict in Lee Circuit Court.
First, State Farm argued the trial court improperly instructed the jury on the subsequent negligence doctrine (also known as last clear chance). During trial, State Farm objected to the charge on the basis that it was redundant. On appeal, State Farm contended the charge was improper because there was insufficient evidence to give the instruction. The Court finds that State Farm’s objection during trial (redundancy) was not sufficient to preserve State Farm’s argument on appeal (lack of the evidence). Ms. **11-12.
Second, the Court finds the wantonness claim was properly submitted to the jury. Ms. *23. State Farm argued, in part, that inconsistencies between a witness's affidavit and trial testimony call into question whether there was sufficient evidence of wantonness. However, the Court did not consider this argument because the appellate record did not include a copy of the that witness’s testimony, which was played by video at trial. Ms. *16. Citing Vaughan v. Oliver, 822 So. 2d 1163, 1170 (Ala. 2001), the Court concludes that “[w]here all the evidence is not in the record, it will be presumed that the evidence was sufficient to sustain the verdict or judgment.” Ms. *17. Thus, the Court determines the judgment is due to be affirmed because the witness’s testimony was not in the record. Id.
Regardless, the Court reasons that State Farm’s wantonness argument is without merit, finding there to be sufficient evidence of "additional circumstances" in addition to speeding, to support the wantonness claim. Ms. *23. Citing Hornady Truck Line, Inc. v. Meadows, 847 So. 2d 908, 916 (Ala. 2002)(a Cunningham Bounds case), the Court points to evidence the vehicle executed an abrupt lane change from a mandatory turn lane, ignoring traffic warning signs, while the driver’s view was obscured by a hillcrest. Ms. **19-23.