Burgin v. Stewart

• Decision Date: 14 April 1927
• Docket Number: 6 Div. 760
• Citation: 114 So. 182,216 Ala. 663
• Parties: BURGIN et al. v. STEWART.
• Court: Alabama Supreme Court

114 So. 182

216 Ala. 663

BURGIN et al. v. STEWART.

6 Div. 760

Supreme Court of Alabama

April 14, 1927

Rehearing Granted June 23, 1927

Further Rehearing Denied Oct. 27, 1927

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action in detinue by J.G. Burgin and another, doing business as Burgin Coal Company, against Jennie S. Stewart. From a judgment for defendant, plaintiffs appeal. Affirmed on rehearing.

Brown J., Anderson, C.J., and Thomas, J., dissenting.

J.B Ivey and Harsh & Harsh, all of Birmingham, for appellants.

Lange Simpson & Brantley and Ormond Somerville, Jr., all of Birmingham, for appellee.

BROWN J.

This is an action of detinue by the appellants against the appellee to recover two White trucks, and the plea was the general issue, pleaded in short by consent with leave to the defendant to give in evidence any matter that would constitute a defense if specially pleaded. Under the statute the issues thus formed embraced any defense that could be pleaded if the action had been on the debt covered by the conditional sale contract, such as fraud and deceit in the sale of chattels, breach of warranty, payment, and modification of the contract as to the time of payment supported by a valuable consideration. Code of 1923, § 7402; Wood v. Lambert, 207 Ala. 260, 92 So. 428; Brown v. Freeman & Bynum, 79 Ala. 406; Tabor v. Peters, 74 Ala. 90, 49 Am.Rep. 804.

Under the issues thus formed, much evidence was offered by both parties which proved to be immaterial, as will hereafter appear.

After the plaintiff's second witness, Feagin, had testified fully as to the original cost of the trucks in question, their hauling capacity, the character of use they had been put to, their condition at the time they were sold to the defendant, and their value, he was asked by plaintiff's counsel, on redirect examination, to state "the average life of that character of truck, when put to the ordinary use for which it was intended." The testimony elicited by this question was pertinent only to the question of value, a fact to which the witness had fully testified, and if error was committed in sustaining the defendant's objection, it was error without injury.

The question asked witness Wheeler, on cross-examination, made the basis of the second assignment of error and to which objection of the plaintiffs was overruled, was not answered, and if error was committed in overruling the objection, this was error without injury.

The same observation is true as to questions asked plaintiffs' witness Strickland, on cross-examination, made the basis of assignments of error 4 and 5.

The fact elicited by the question of plaintiffs' counsel to the witness Wheeler, made the basis of assignment of error 3, as to whether "it is not customary for some haulers, in order to increase the amount of work done, to put up sideboards," does not appear to have been material.

While it appears from the testimony of the defendant's witness, Maak, that he was not a mechanic, he had used the trucks in question, had been driving such trucks for 7 years, and had been driving and "keeping up" trucks for 5 years, and the only objection urged against his testimony was that he was not shown to be qualified to testify as to the mechanical condition of the trucks at the time he was using them. We are not of the opinion that this objection was well taken and the ruling of the court here was free from error. McWhorter v. Tyson, 203 Ala. 509, 83 So. 330; Alabama Great Southern R.R. Co. v. Bailey, 112 Ala. 167, 20 So. 313.

The only objection to the question, "Tell the jury whether or not one of them broke," asked the witness Poss by defendant's counsel, and the answer, "One of them broke," was that "It is immaterial and irrelevant and incompetent." The rule is that:

"A general objection of this character cannot be sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being rendered admissible in connection with other evidence." Sanders v. Knox, 57 Ala. 80; Bufford v. Little, 159 Ala. 300, 48 So. 697; Henderson v. Holmes & Dawson, 204 Ala. 203, 85 So. 536; Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902.

Looking to the scope of the issues and the wide range taken in the introduction of evidence by both parties and the fact that the defendant had not examined her most important witness, it could not be said at the time this evidence was offered that it was incapable of being rendered admissible by other evidence to follow, and the court will not be put in error for overruling the general objections made by the plaintiffs.

In respect to the other assignments of error, numbered 9, 10, and 11, no ground of objection was stated.

It is clear from the testimony of the plaintiff Burgin that the $750 note, payable May 10, 1925, and the $250 in cash were accepted as the cash payment of $1,000 acknowledged to have been made in the two contracts. This note is not mentioned in either of the contracts as one of the installments secured thereby, and a failure to pay this note did not constitute a default in the payments under the contracts, authorizing the plaintiffs to repossess the...