Pepsi-Cola Bottling Co. of Dothan, Ala., Inc. v. Colonial Sugars, a Div. of Borden, Inc., PEPSI-COLA

• Citation: 423 So.2d 190
• Decision Date: 19 November 1982
• Docket Number: PEPSI-COLA
• Parties: BOTTLING COMPANY OF DOTHAN, ALABAMA, INC. v. COLONIAL SUGARS, A DIVISION OF BORDEN, INC. 81-580.
• Court: Alabama Supreme Court

Page 190

423 So.2d 190

PEPSI-COLA BOTTLING COMPANY OF DOTHAN, ALABAMA, INC. v. COLONIAL SUGARS, A DIVISION OF BORDEN, INC.

81-580.

Supreme Court of Alabama.

Nov. 19, 1982.

C.R. Lewis of Lewis & Brackin, Dothan, for appellant.

T.E. Buntin, Jr. of Buntin & Cobb, Dothan, for appellee.

JONES, Justice.

Plaintiff/Appellant Pepsi-Cola Bottling Company of Dothan, Alabama, Inc., commenced this proceeding with a four-count complaint, two counts of which (on account and negligence) were against Colonial Sugars, a division of Borden, Incorporated, seeking recovery of $10,156.27 allegedly paid by Pepsi to Colonial for 56,000 pounds of bulk sugar delivered via Southern Railway Systems. ¹ The crux of the complaint was that a refund of such monies was appropriate, because, upon delivery, portions of the sugar were nonextractable from the railroad car.

The case was tried to a jury, which returned a verdict favorable to Colonial. Pepsi appeals. We affirm conditionally.

FACTS

In April of 1979, Pepsi ordered from Colonial 176,362 pounds of bulk sugar at a price of 18.63 cents per pound. The cargo was shipped in one naqua-matic bulk sugar railroad car which contained three compartments, and was delivered to Pepsi on April 25, 1979, for which Pepsi paid Colonial in excess of $32,000.

Upon arrival in Dothan, for reasons unknown to Pepsi at the time, only two of the three compartments operated so as to freely discharge their contents. Following repeated attempts to rectify the situation, with no success, Pepsi was informed by Colonial's Mobile office to return the car and its one unloaded compartment to Colonial's plant in Gramercy, Louisiana. After receiving the car back in Louisiana, Colonial discovered that of the approximately 56,000 pounds of sugar originally in compartment three upon the car's leaving Dothan, only 2,150 pounds remained. Thereupon, Colonial issued to Pepsi a credit memorandum in the amount of $264.45 based upon 2,050 pounds at $12.90 per hundredweight. ²

ISSUES PRESENTED AND STANDARDS OF REVIEW

Of the three issues stated, only the "preponderance of the evidence" issue is properly before us for review. Pepsi's abstract statement of issue No. 1, as well as the argument section of its brief, suggests no adverse ruling of the trial court to invoke appellate review. Additionally, our review of the record discloses that the court's instruction to the jury was confined to the plaintiff's claim for damages based upon the combined negligence of Colonial Sugars and Central of Georgia Railroad and Colonial's alternative defenses of the general issue and contributory negligence. Pepsi seeks to invoke our review of specific statutory provisions of the UCC upon which neither was the case tried nor the jury instructed.

Issue No. 2 is not properly before us because of Pepsi's failure to comply with ARCP 51. This Rule of civil procedure effected a major change in the former practice permitting reservation of error by the trial court's merely marking a written requested charge "refused." The Rule is explicit in its requirement of a specific objection and the assignment of grounds therefor. The record before us is devoid of any objections to any jury instructions given or refused on the point in question. For a series of cases in which this Court addressed the proper application of Rule 51, see Odom v. Linsey, 365 So.2d 664 (Ala.1978); Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979); Lollar v. Alabama Power Co., 371 So.2d 9 (Ala.1979); Louisville and Nashville Railroad Co. v. Garrett, 378 So.2d 668 (Ala.1979); Childress v. Cooper Real Estate, Inc., 399 So.2d 286 (Ala.1981); Ward v. Southern Pine Electric Cooperative, Inc., 401 So.2d 22 (Ala.1981); Walker v. Dutton, 401 So.2d 32 (Ala.1981); and Alabama City Bank of Gadsden v. Vaughn, 413 So.2d 1053 (Ala.1982).

The requested affirmative charge in this case does not fall within the purview of the exception to Rule 51's application set forth in Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977). Pruitt correctly recognized that, ordinarily, a request for an affirmative charge is the legal equivalent of a motion for a directed verdict; but it conditioned the exemption of such a request from the requisites of Rule 51 on the trial court's awareness of the movant's position.

Pruitt posed the inquiry thusly: "[C]an a specific objection and stated grounds add to an explanation of such a request?" Generally speaking, a motion for directed verdict contains its own grounds, implicit in the context in which it is made; and a specific objection to the court's adverse ruling, and the assignment of grounds therefor, add nothing, because the request is self-explanatory.

Such is not the case here, however. Pepsi seeks appellate review of the trial court's refusal of the affirmative charge, based upon the application of complex UCC principles, but it is clear from the record that such matters were not brought to the trial court's attention. Furthermore, we note that no request for additional instructions on the law of the case relating to any claim other than negligence was ever forthcoming. Indeed, during a pre-charge conference in which the trial court considered, and preliminarily ruled upon, each of the parties' respective requested charges, and in which counsel was given the opportunity to register objections, the court's announced refusal of Pepsi's requested affirmative charge was met with total silence. Matters not presented below will not be reviewed on appeal. Johnston v. Bridges, 288 Ala. 156, 258 So.2d 866 (1972).

The preponderance of the evidence issue, having been presented by Pepsi to the trial court as a ground for its post-judgment motion for a new trial, is properly before us for review. Johnston v. Bridges, supra. Our scope of review is governed by familiar standards. Absent a failure of proof claim (i.e.,...