Scroggins v. Alabama Gas Corp.

• Decision Date: 21 February 1963
• Docket Number: 6 Div. 589
• Parties: Sara Lee SCROGGINS v. ALABAMA GAS CORPORATION.
• Court: Alabama Supreme Court

Page 90

158 So.2d 90

275 Ala. 650

Sara Lee SCROGGINS v. ALABAMA GAS CORPORATION.

6 Div. 589.

Supreme Court of Alabama.

Feb. 21, 1963.

Rehearing Denied Dec. 12, 1963.

Harry B. Cohen, Birmingham, for appellant.

John H. Morrow and White, Bradley, Arant, All & Rose, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is an action at law by Sara Lee Scroggins against Alabama Gas Corporation, a public utility corporation, to recover damages for the wrongful taking of a gas stove by defendant, and conversion of the stove, for wrongful detention (detinue), for trespass to property, for wrongful invasion of privacy, for breach of contract, and for money had and received.

The original complaint contains eleven counts, some of which claim punitive damages, the count in detinue was later withdrawn.

The defendant demurred to the complaint and the trial court sustained the demurrer to the counts for invasion of privacy. The demurrers to all other counts were overruled. An amended demurrer was also overruled except to the invasion of privacy counts.

The defendant filed Pleas 1 to 5, inclusive. Pleas 1 and 2 were the general issue. In essence, Pleas 3, 4 and 5 stated that the stove had been repossessed from the plaintiff by defendant under a contract variously designated in pleas as a 'contract for sale,' 'conditional sales contract,' and 'lease-sale contract,' which had been signed by plaintiff on the purchase of the stove. The pleas asserted that plaintiff had become delinquent in payments and the repossession was authorized under the contract.

Plaintiff's demurrers to defendant's pleas were overruled.

Plaintiff filed Replication Nos. 1 to 9, inclusive. In Replications 1 and 2, the plaintiff joined issue on Pleas 1 and 2 of the defendant (general issue), and made specific Replications 3 to 9 to defendant's Pleas 3, 4 and 5. The demurrers to Replications Nos. 3 to 9 were sustained, and plaintiff filed amended Replications 10 to 14, inclusive. Defendant's demurrer was sustained to amended Replications 10 to 13, but were overruled as to Replication No. 14.

Replication 14 alleged, in substance, that, under the contract, the defendant had an option on default of the purchaser (a) to declare the entire amount unpaid due, and to elect to sue for that amount, immediately vesting absolute title in the purchaser, or (b) to repossess the stove; that on August 28, 1956, plaintiff filed a debtor's petition in United States Debtor's Court under Chapter XIII, Sec. 622, as amended, of the United States Bankruptcy Laws, for a composition of her debts; and that defendant was not listed as a creditor in the petition; that on January 4, 1957, the defendant filed a sworn proof of claim against the plaintiff in the above court to recover the balance of the purchase price on the stove; and requested the court to increase the debtor's payments into court to insure its preference; that on January 11, 1957, the Debtor's Court ordered that payment of the defendant's claim be suspended pending efforts to replace the plaintiff's stove with a less expensive stove, and that when the reduction of the claim was so accomplished, the defendant was to be included in the proration of present payments; that on August 2, 1957, the Debtor's Court ordered that the defendant be excluded from the plan of composition of the plaintiff's debts, and that defendant was given release to deal directly with the plaintiff; that on August 14, 1957, the defendant repossessed the stove without the plaintiff's knowledge or consent; that the foregoing acts constituted an election to sue under the contract, thereby vesting absolute title in the plaintiff, and the conduct of defendant in repossessing the stove was a 'breach of said contract and was wrongful as alleged.'

The defendant joined issue on Replication 14 and filed an additional Plea No. 6. In Plea 6, the defendant averred that the plaintiff was indebted to it in the sum of $238.28, the unpaid balance on the stove, and offered to set off against the plaintiff's demands that amount. Plaintiff's demurrer to Plea 6 was overruled.

In reply to Plea 6, the plaintiff filed Replications 1 to 5, inclusive. Replications 1, 2 and 3 were the general issue. Plaintiff's Replications 4 and 5 to Plea 6 averred that the defendant had repossessed the stove and cannot now enforce the payments of the balance of the purchase price by setoff, 'as the assertion of either right is an abandonment of the other.' Defendant's demurrers to Replications 4 and 5 were sustained.

Issue being joined, a trial by jury resulted in a verdict for the defendant.

Plaintiff filed a motion for a new trial, asserting many grounds. The motion was overruled and the plaintiff took this appeal.

There is little or no dispute relative to the following facts in the case:

On December 16, 1955, the plaintiff entered into a sales contract with the defendant for the purchase of a Universal Range stove at a price of $336.36. Plaintiff was given a trade-in allowance of $25 for her coal stove and paid $5.00 down in cash, leaving a balance of $306.36, which she was to pay off in 36 months in installments of $8.51. The pertinent conditions of the contract provided that upon default in payments, the defendant could at its option either '(1) without any previous notice or demand of performance, declare the entire amount of the installments hereunder then remaining unpaid to be immediately due and payable and elect to sue for that amount due, thereby vesting the absolute title in and to said property in the 'Purchaser' or (2) without any previous notice or demand of performance and without legal process, enter any premises where the said property may be found, and take possession thereof, * * *.'

The plaintiff paid eight installments and then defaulted, the last payment being made in September, 1956, for that month.

On August 14, 1957, agents of the defendant went to the plaintiff's home, disconnected the stove, and removed it from the plaintiff's premises. The evidence is in dispute as to whether anyone in the plaintiff's household opened the door for the defendant's servicemen. The evidence is also in dispute as to whether or not the defendant's agents removed a screen door in order to remove the stove.

There are 38 assignments of error, many of which are not argued in brief and are, therefore, waived. We will treat the assignments of error in the order in which they are argued in brief.

Before proceeding to a discussion of the assignments of error, we will dispose of a motion made by appellee to expunge and strike from the record an affidavit of appellant's attorney.

As stated, appellant filed a motion for a new trial, or a rehearing, stating numerous grounds. The motion for the rehearing, or new trial, was overruled on November 24, 1959, and this appeal was taken May 23, 1960. Two of the grounds of the motion for a new trial were predicated upon the fact that a certain ledger sheet of the defendant, defendant's Exhibit, which had not been introduced in evidence, but had been marked for identification only, was carried into the jury room by the jury, and that said Exhibit contained interoffice memos, self-serving declarations, hearsay, and other wholly immaterial, irrelevant, incompetent and illegal matters. So far as the record shows, no evidence whatever was introduced to support these grounds of the motion for a new trial. However, after the appeal was perfected, and on the 4th day of August, 1960, plaintiff's attorney filed in the clerk's office an affidavit to the effect that the morning after the trial, affiant verified by Hon. 'Doc' Barker, bailiff of the trial court, that said defendant's Exhibit 1 had been submitted to the jury along with the other exhibits in evidence. The appellee moved to expunge or strike this affidavit from the record.

Obviously, this affidavit was not presented to the trial court on the occastion of the hearing of appellant's motion for a new trial.

The general rule is that the appellate court cannot consider any matters outside the record. The only other place in the transcript that indicates that the inadmissible ledger sheet went to the jury is in appellant's motion for a new trial and in her Assignments of Error 22 and 23.

In the case of Powers v. David, 6 Ala. 9, an appeal was taken from a decision of a case tried before a jury in the justice of the peace court. The appellant assigned as error that the court was without jurisdiction, because the trial was held in the United States Arsenal instead of on Alabama soil. The appellant attempted to bring this alleged error before the court by submitting for the first time the affidavit of a juror to that effect. The Supreme Court in refusing to consider the affidavit said:

'* * * it is certain that no part of the record shows that the trial was had at the place asserted by the assignment, or indeed at any other place liable to exception. It is not competent for a party in an appellate court, to present a fact by affidavit which the record does not disclose. * * *'

This court has also held that affidavits cannot be received on appeal to contradict the certificate of the probate judge as to when an appeal was taken from his decision. Carey v. McDougald, Adm'r, 25 Ala. 109, nor can the matters of the court be covered by ex parte affidavits, Prinz v. Weber, 126 Ala. 146, 28 So. 10. While these two cases deal with contradicting the record, rather than supplementing it, they do provide some authority for allowing affidavits after appeal is taken.

On the other hand, it should be pointed out that in the McDougald case, supra, the court held that affidavits could be received to show that security for costs was not given at the time when the appeal was taken. The record did not show when security was given, and Chief Justice Chilton said:

'* * * It is a fact outside of it [record] the proof of which does not in any way contradict, but is in aid of the record,...