F. Becker Asphaltum Roofing Co. v. Murphy, 6 Div. 103.

• Decision Date: 14 April 1932
• Docket Number: 6 Div. 103.
• Citation: 224 Ala. 655,141 So. 630
• Parties: F. BECKER ASPHALTUM ROOFING CO. ET AL. v. MURPHY.
• Court: Alabama Supreme Court

141 So. 630

224 Ala. 655

F. BECKER ASPHALTUM ROOFING CO. ET AL. v. MURPHY.

6 Div. 103.

Supreme Court of Alabama

April 14, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for breach of warranty by Rosa Murphy against the F. Becker Asphaltum Roofing Company and the Fidelity & Casualty Company of New York. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 7326, Code 1923.

Affirmed.

p>Page J. K. Taylor and Chas. W. Greer, both of Birmingham, for appellants.

Arlie Barber, of Birmingham, for appellee.

BROWN J.

The plaintiff sued the appellants for breach of warranty and recovered a judgment against both, from which they jointly appealed, and have submitted the appeal on joint assignment of errors, without leave or order of severance, and under the uniform rulings here, only errors injuriously affecting both appellants are available to reverse the judgment. Cook et al. v. Atkins, 173 Ala. 363, 56 So. 224; Hall et al v. First Bank of Crossville, 196 Ala. 627, 72 So. 171.

The subject of the warranty was a roof placed on the plaintiff's dwelling by one of the defendants, of material manufactured and sold by it, and insured by both against windstorms hail, defective material, and faulty workmanship, the "guarantee of satisfaction and service covering the repair of any leak due to" any of the specified causes.

The plaintiff offered evidence going to show that the roof leaked all over the house, every time it rained; that water fell upon the bed where plaintiff slept, and upon the other furniture and furnishings, disturbing plaintiff; that plaintiff was a sufferer from asthma, and contracted colds and suffered therefrom; that defendant Becker Roofing Company was notified of the condition of the roof and made no effort to repair the same.

The defendant offered evidence going to show that the roof was of good material, and was put on in a workmanlike manner, and one of defendants' witnesses testified that he went to the plaintiff's house "one morning while it was raining. I stayed there from around nine o'clock to about a quarter to one. It was raining all the time; raining hard. I went in all the rooms of the house, turned on all the lights in the house and took a flash-light. I found no leaks whatever." (Italics supplied.)

Another witness testified: "I took this old negro [the witness whose testimony is quoted above] that was in here on the stand to this negro woman's house one morning while it was raining when I went down there. It was raining as hard as I ever saw it, and I got there about nine o'clock and stayed until nearly one o'clock, and when I got ready to leave-I didn't make an inspection until I got ready to leave-and I looked into every room and around the chimney and there was not a drop of rain coming through." (Italics supplied.)

The plaintiff offered testimony, in rebuttal, that the two witnesses testifying for defendant came to plaintiff's house after the suit was brought, on two occasions, once sometime before the trial, and on the day before; that the roof was leaking while they were there; that the witness Watson did not go through the house with a flash-light and make an inspection; that the roof was leaking while the man was there, leaking in all four rooms and on the porch.

To authorize a recovery in a civil action, it is enough that the plaintiff prove the substance of the issue. She was not required to prove all the averments, but those that are material; nor was she required to prove all the damages claimed in the complaint. Wilson v. Smith, 111 Ala 171, 20 So. 134; Southern Ry. Co. v. Lee, 167 Ala 268, 52 So. 648; St. Louis & S. F. Ry. Co. v. Mills, 220 Ala. 107, 124 So. 231; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; International Harvester Co. v Williams, 222 Ala. 589, 133 So. 270.

The evidence made a case for jury decision and the affirmative charge was well refused.

The general rule is that damages cannot be recovered for mental anguish in an action of assumpsit. Birmingham Water Works Co. v. Vinter, 164 Ala. 490, 51 So. 356. The ground on which the right to recover such damages is denied, is that they are too remote, were not within the contemplation of the parties, and that the breach of the contract is not such as will naturally cause mental anguish. Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689, 44 A. L. R. 1484. "Yet where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages...