Davis v. Erwin

• Decision Date: 25 March 1926
• Docket Number: 7 Div. 639
• Citation: 214 Ala. 341,107 So. 903
• Parties: DAVIS v. ERWIN.
• Court: Alabama Supreme Court

107 So. 903

214 Ala. 341

DAVIS v. ERWIN.

7 Div. 639

Supreme Court of Alabama

March 25, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Mrs. E.D. Davis against B.W. Erwin. Being dissatisfied with the amount of the judgment in her favor, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Victor Vance, of Gadsden, for appellant.

E.O McCord & Son, of Gadsden, for appellee.

MILLER J.

This is a suit by Mrs. E.D. Davis against B.W. Erwin. There are two counts in the complaint. Count A claims damages for the conversion by defendant of lumber, brick, hardware, and other building material of what was a four-room house, the property of plaintiff. Count B claims damages for trespass by the defendant on a lot in Attalla owned by plaintiff, and tearing down and moving therefrom a four-room house.

The defendant pleaded general issue. The jury returned a verdict in favor of the plaintiff for $62.50, and from a judgment thereon in favor of the plaintiff, this appeal is prosecuted by the plaintiff.

The plaintiff appeals because dissatisfied with the amount of the verdict of the jury, and under such circumstances only the alleged errors which affect the amount of damages will be considered. Franklin v. Argyro, 100 So. 811, 211 Ala. 506, headnote 1; Lewis v. Wallace, 82 So. 127 203 Ala. 113, headnote 1.

The plaintiff resides in New York City, and owned a lot in Attalla, Ala., on which she had a four-room house. The house was old, dilapidated, decaying, falling down, unoccupied, and contained much human excreta. It was unsanitary, and located near homes of the residents of the city. The condition of the house was called to the attention of the agent of the owner and he stated he had no authority to repair it. The county health officer inspected it, and ordered the house sold without any court proceedings. The defendant bought it for $12.50, gave his check for it to the health officer, and the check was deposited in the bank, where it is at present. The defendant was mayor of the city at the time. The defendant then had the house taken down, and removed the materials of it to his lot. The plaintiff was in London, England, on a visit at the time, and knew nothing of it. There is no contention by appellee that the defendant, by his purchase of the house, and paying $12.50 for it to the health officer, secured thereby any right or title to it, so that phase of the evidence need not be discussed.

The plaintiff asked Dr. Murphree, the county health officer: "Did he [[[meaning the agent of plaintiff] protest against your trying to sell the place?" The court sustained defendant's objection to this question, and plaintiff duly excepted. There is nothing to show that defendant was present and heard this conversation. What the agent of plaintiff said to the health officer would not affect the defendant or his rights in this cause, and the court properly sustained the objection to the question. The health officer asked the agent of the plaintiff, after inspecting the property, if he could not put it in sanitary condition; that he recommended that it be removed, or at least cleaned and nailed up, and the agent replied "he had no authority to incur any expense."

The defendant, over objection and exception of the plaintiff, was permitted by the court to ask this question of the health officer: "Did you not tell him it would have to be done?" and he answered: "I told him we had condemned it or have it removed; it would not be right to leave it there as a menace." If in this ruling the court erred, it was without injury to the plaintiff, as the testimony in no way affected the amount of damages. Franklin v. Argyro, supra.

The court did not err in admitting evidence as to when the house was sold, the check given by the defendant for the purchase price, and the amount paid for the house. This evidence was competent and relevant to go to the jury on the question of exemplary damages as tending to show why and under what circumstances the defendant removed the house from the lot. Barrett v. City of Mobile, 30 So. 36, 129 Ala. 179, 87 Am.St.Rep. 54; 12 Michie, p. 313, § 42.

It appears from the evidence that one Ingram sold this house to the defendant. He was street tax and sanitary collector of Attalla, and working also as deputy tax collector of the city, and was working under the health officer as sanitary inspector at the time of the sale. The court would not, over objection of defendant, allow the plaintiff to ask the defendant the following question: "Who paid him?" Whether the question was intended to find out who paid him for making the sale or who paid his salary, it called for no evidence whch would tend to increase or decrease the amount of damages in this case, and the plaintiff cannot complain at this ruling of the court. Authorities supra.

The court, at the request of defendant, gave the general affirmative charge with hypothesis in favor of the defendant as to count A. This was the conversion count. There was evidence that plaintiff owned this lot and...