
    Randal Scott SMITHERMAN, et al. v. Stacie Jo Crowder BEAVERS.
    1920917.
    Supreme Court of Alabama.
    Nov. 19, 1993.
    David M. Anderson and W. Cameron Parsons of Parsons, Sutton & Delchamps, Tuscaloosa, for appellants.
    Clifton S. Price II of Kracke, Thompson and Ellis, P.C., Birmingham, for appellee.
   STEAGALL, Justice.

Randal Scott Smitherman; Rose Marie Smitherman; and Gwendolyn May Payne, a minor suing by and through her mother, Billie Payne, (hereinafter collectively referred to as “the Smithermans”) sued Stacie Jo Crowder Beavers, alleging that Beavers had negligently caused an automobile collision between the Smithermans’ vehicle and Beavers’s vehicle and that that collision had caused personal injury to the plaintiffs. The jury returned a verdict for Beavers, and the court entered a judgment on that verdict. The Smithermans appeal.

In March 1991, Beavers was traveling north on a three-lane roadway across Hugh Thomas Bridge in Tuscaloosa, Alabama. It was raining heavily. As Beavers slowed her ear to exit the bridge, the car began to hydroplane. Beavers lost control of the ear and veered into the guardrail on her right. Upon impact with the guardrail, Beavers’s car swerved to the left, directly into the center lane of the bridge and into the path of the Smithermans’ car. The two cars collided and the three plaintiffs were injured.

At trial, the parties submitted written proposed jury charges and, after the close of evidence, the court held a conference in chambers to rule upon them. The Smither-mans objected to Beavers’s proposed charge on the “sudden emergency doctrine,” which read:

“If a person without fault of his own is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation; and the fact, if it be a fact, that he does not choose the best or safest way of escaping peril or preventing injury is not necessarily negligence; but the standard of care required in an emergency situation is that care in which a reasonable or prudent person would have exercised under the same or similar circumstances.”

After considering the objection, the trial court marked the charge “Refused.” Immediately following that conference, the parties’ counsel gave their closing arguments, during which neither party mentioned the sudden emergency doctrine. The following day, Beavers’s counsel submitted to the trial court ease law regarding the sudden emergency doctrine. After reviewing that ease law, the court charged the jury as to the doctrine, over the Smithermans’ objection.

On appeal, the Smithermans argue that the trial court erred in reconsidering its ruling on the proposed jury charge after closing arguments. The Smithermans rely on Rule 51, A.R.Civ.P., which provides, in pertinent part:

“At the close of the evidence or at such other time during the trial as the court reasonably directs, any party may file and, in such event, shall serve on all opposing parties written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed actions upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are complete. The judge shall write ‘given’ or ‘refused’ as the case may be, on the request which thereby becomes part of the record.”

Rule 51 requires the trial court to inform the parties’ counsel of its ruling on proposed jury instructions before the parties make their closing arguments; compliance with the rule permits a more intelligent closing argument and alerts counsel to areas for objection at the conclusion of the charge. C. Lyons, Alabama Rules of Civil Procedure Annotated, § 51.3 (2d ed. 1986). Nevertheless, the court’s failure to comply with Rule 51 is not reversible error unless the court refuses to comply even after its attention has been called to the requirements of the rule or prejudice results from the failure to comply. Trimble v. Bramco Products, Inc., 351 So.2d 1357 (Ala.1977).

Here, the trial court initially complied with the letter of Rule 51 by refusing the sudden emergency doctrine jury charge prior to closing arguments; however, the trial court violated the rule by then giving the jury charge after closing arguments. As the Smithermans point out, the sudden emergency doctrine is a modification of the general standard of care required of a reasonable person and allows for a different correctness of judgment than would be required of an individual who had time and opportunity to fully consider the circumstances. By relying on the court’s initial ruling on the sudden emergency doctrine jury charge, the Smith-ermans lost the opportunity to be heard on an issue central to their claim. We must therefore conclude that the court’s belated reconsideration of its ruling on the charge necessarily prejudiced the Smithermans’ case.

Beavers points out that a party who objects to a given jury charge must ordinarily state specific grounds for the objection before the jury retires for its deliberations. Nelms v. Allied Mills Co., 387 So.2d 152 (Ala.1980). The Smithermans’ counsel failed to object to the trial court’s reconsideration of its ruling on the sudden emergency jury charge after closing arguments; rather, he objected to the charge based on the argument that the evidence did not support it. As this Court indicated in Trimble, however, a specific objection may not be required where prejudice is shown to have resulted from the trial court’s failure to properly comply with the requirements of Rule 51. In such a case, fairness may require some flexibility in reviewing a failure to object to a requested instruction in cases where counsel has not received the benefit of information counsel is entitled to under Rule 51. See C. Lyons, Alabama Rules of Civil Procedure Annotated, § 51.3 (2d ed. 1986).

Based on the facts of this case, we cannot hold that the Smithermans’ failure to specifically object to the trial court’s Rule 51 violation constituted a waiver of the error; accordingly, the judgment is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

HORNSBY, C.J., and HOUSTON, KENNEDY and COOK, JJ„ concur.

MADDOX, ALMON and INGRAM, JJ., dissent.

MADDOX, Justice

(dissenting).

As I understand the facts, they are as follows: At trial, the defendant Beavers submitted a proposed jury charge on the “sudden emergency doctrine” that read:

“If a person without fault of his own is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation; and the fact, if it be a fact, that he does not choose the best or safest way of escaping peril or preventing injury is not necessarily negligence; but the standard of care required in an emergency situation is that care ... which a reasonable or prudent person would have exercised under the same or similar circumstances.”

The trial court refused the proposed charge, but indicated that it might change its ruling if presented with case law justifying the charge. Immediately after the ruling, the parties gave their closing arguments, and neither party mentioned the sudden emergency doctrine. The next day, Beavers submitted case law regarding the sudden emergency doctrine, and the trial court instructed the jury as to the doctrine, over the plaintiffs’ objection on the general ground that the instruction on sudden emergency was not supported by the evidence.

The Court holds that the trial judge erred in instructing the jury after the parties had made their closing arguments, because of the provisions of Rule 51, Ala.R.Civ.P., which states in part:

“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file and, in such event, shall serve on all opposing parties written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. The judge shall write ‘given’ or ‘refused’ as the case may be, on the request which thereby becomes a part of the record.”

The Court writes that by relying on the trial court’s initial ruling on the requested instruction, the plaintiffs “lost the opportunity to be heard on an issue central to their claim,” and it says that the sudden emergency doctrine modifies the general standard of care required.

Beavers answers the plaintiffs’ argument by stating that the plaintiffs did not state specific grounds for their objection, but objected only generally on the sufficiency of the evidence to support the giving of the instruction rather than on the grounds that it was not approved before the closing arguments.

I am unwilling to hold, as the majority does, that a specific objection was not required in this case. The majority says that “where prejudice is shown to have resulted from the trial court’s failure to properly comply with the requirements of Rule 51” a specific objection may not be required, citing Trimble v. Bramco Products, Inc., 351 So.2d 1357 (Ala.1977). The majority says: “Fairness may require some flexibility in reviewing a failure to object to a requested instruction in eases where counsel has not received the benefit of information counsel is entitled to under Rule 51. See C. Lyons, Alabama Rules of Civil Procedure Annotated, § 51.3 (2d ed. 1986).” 628 So.2d at 596.

I fail to see how the Trimble case, or the statement quoted from Lyons’s treatise, can support the granting of a new trial. In view of all the facts surrounding the trial court’s initial refusal to give the instruction and the fact that the defendant provided the court with authority that convinced the court that the instruction was proper, the plaintiffs, in my opinion, should have been more specific in their objection. Rule 1(c), Ala.R.Civ.P., states: “These rules shall be construed to secure the just, speedy and inexpensive determination of every action.” I think the majority’s ruling today violates the spirit of Rule 1.

When I consider the fact that the trial court had given the defendant an opportunity to present case law suggesting that the instruction should be given, it seems clear to me that the plaintiffs’ objection was much too general for them now to claim a violation of Rule 51. “A party waives any possible error as to a trial court’s oral charge by failing to specifically object and to state grounds for the objection.” Campbell v. Employers Ins. Co., 521 So.2d 924, 926 (Ala.1988), citing Beneficial Management Corp. of America v. Evans, 421 So.2d 92, 97 (Ala.1982). A very technical application of the provisions of Rule 51 would make it error for a trial judge to give an instruction after counsel had made closing arguments, but I would not put the trial judge in error, because I do not think the plaintiffs argued to the trial judge what they argue here, that the giving of the “sudden emergency” instruction was highly prejudicial and that they should at least be allowed to argue to the jury why the evidence in the case made the instruction inapplicable. The spirit of Rule 1 is to dispose of cases on their merits. I believe the plaintiffs should have made to the trial judge the arguments they make here. Consequently, I must respectfully dissent.

ALMON, J., concurs.

INGRAM, Justice

(dissenting).

I disagree with the majority’s holding, which I think allows a party to assert on appeal a violation of Rule 51 without having properly preserved the error. At the close of the jury instructions, the Smithermans’ attorney made the following objection:

“Plaintiffs object to an instruction to the jury based on the sudden emergency doctrine. We believe that there has been no evidence to show that the Defendant chose to escape any type peril in the case nor that she was presented with a sudden emergency."

(Emphasis added.) This objection was made solely to dispute whether there was sufficient evidence to support the charge. However, the Smithermans now, for the first time, raise the post-charge conference issue on appeal. Clearly, the Smithermans did not preserve this issue for appellate review. Rule 51 states:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds for his objection.”

(Emphasis added.) We should require an objection to violations of Rule 51, just as we require an objection in regard to almost every other error at trial except those errors noted on a “plain error” review.

In addition, I disagree with the majority’s conclusion that the Smithermans were prejudiced by the court’s failure to give the instruction until after the closing • argument. The jury’s verdict is consistent with the evidence, regardless of the sudden emergency issue. Further, assuming, arguendo, that the Smithermans were prejudiced by the late charge, any prejudice they suffered is attributable to their own failure to apprise the trial court of the problem. They could have asked the trial court for another opportunity for closing argument, but did not.

Without a doubt, the majority’s holding has placed the trial court in a precarious position. The trial court, which merely wanted to further research the sudden emergency issue, was set for reversal in whatever decision it made on the charge. If the charge was proper and supported by the law and the facts, the trial court would have erred in failing to give the charge. If the trial court decided to give the charge, it would then have erred in failing to give the charge before the closing argument.

We should not reverse a judgment based on a jury verdict unless the appellant can demonstrate that the verdict was palpably wrong or manifestly unjust. Holloway v. Robertson, 500 So.2d 1056 (Ala.1986). I believe that the Smithermans have presented this Court with no evidence of prejudice regarding the trial court’s Rule 51 violation and did not preserve the error for appellate review. I would affirm the trial court’s judgment for these reasons. Therefore, I respectfully dissent.  