General Finance Corp. v. Bradwell

• Decision Date: 17 March 1966
• Docket Number: 1 Div. 242
• Citation: 186 So.2d 150,279 Ala. 437
• Parties: GENERAL FINANCE CORPORATION v. Joseph BRADWELL.
• Court: Alabama Supreme Court

Page 150

186 So.2d 150

279 Ala. 437

GENERAL FINANCE CORPORATION v. Joseph BRADWELL.

1 Div. 242.

Supreme Court of Alabama.

March 17, 1966.

Rehearing Denied May 5, 1966.

Gibbons & Stokes, Mobile, for appellant.

John A. Courtney, Mobile, for appellee.

LAWSON, Justice.

This is an appeal from a final judgment of the Circuit Court of Mobile County.

In July of 1962, Joseph Bradwell purchased a new Rambler automobile from Hardy Motor Company in Mobile. The purchase of the automobile was financed by General Finance Corporation, hereafter sometimes referred to as G.F.C. Bradwell was to make payments to G.F.C. in an amount not necessary to mention here on the 20th day of each month, beginning with the month of August, 1962, until his obligation to G.F.C. was paid.

Bradford made the payments due in August and September of 1962.

Representatives of G. F. C. repossessed the automobile during the month of October, 1961. Shortly after the repossession G.F.C. filed a deficiency judgment suit in the Court of General Sessions of Mobile County claiming the sum of $1,021.42 on a written contract, but in its complaint G.F.C. waived all amounts in excess of the $500 jurisdictional limit of the Court of General Sessions. The complaint filed by G.F.C. against Bradwell in the Court of General Sessions alleged that the repossession occurred on October 17, 1962. The suit in the Court of General Sessions resulted in a judgment in favor of the defendant, Bradwell.

On June 26, 1963, Bradwell instituted this suit in the Circuit Court of Mobile County against G.F.C. In each of three counts of the complaint Bradwell sought to recover from G.F.C. the sum of $50,000 damages. Count One claimed damages for the conversion of the automobile, Count Two for the wrongful taking of the automobile, and Count Three sought damages for malicious prosecution of the suit filed by G.F.C. against Bradwell in the Court of General Sessions. G.F.C. pleaded the general issue.

At the trial before the court and a jury, G.F.C. conceded that it had repossessed the automobile but claimed that it was done on October 24, 1962, rather than on October 17, 1962, as claimed by Bradwell. G.F.C. claimed that it had erroneously alleged in the complaint filed by it against Bradwell in the Court of General Sessions that the repossession had occurred on October 17, 1962, due to an error of one of its office personnel. G.F.C. also contended that the repossession did not occur until after Bradwell had indicated that he did not want to keep the automobile. Bradwell denied that such was the case.

At the conclusion of the evidence, the trial court gave the general affirmative charge with hypothesis in favor of G.F.C. as to Count Three of the complaint. Thereafter the jury returned a general verdict in favor of the plaintiff, Bradwell, in the amount of $6,800. A judgment in accord with the verdict was rendered in favor of Bradwell and against G.F.C. on May 27, 1964.

On June 22, 1964, G.F.C. filed a motion for new trial which contained fifteen grounds. Upon presentation of the motion to him, the trial judge set June 26, 1964, as the day for the hearing on the motion. On June 26, 1964, the trial court ordered that the hearing on the motion for new trial filed on June 22, 1964, be continued until August 7, 1964.

On June 26, 1964, G.F.C. filed six additional grounds 'to its motion heretofore filed in the above captioned matter.' (Grounds 16 through 21)

Also on June 26, 1964, the trial court rendered the following order:

'In open Court on this day, on motion of the defendant; It is ordered by the Court that defendant's additional grounds of motion filed June 26, 1964, to set aside the verdict of the jury and judgment in this cause and to grant a new trial be, and the same is hereby specially continued to August 7, 1964.'

August 7, 1964, was the day to which the trial court had previously continued the hearing on the original motion for new trial filed on June 22, 1964.

On August 7, 1964, the trial court rendered the following judgment:

'This day in open Court came the parties by their attorneys, and Defendant's additional grounds to motion filed June 26, 1964, to set aside the verdict of the jury and judgment and grant a new trial in this cause, coming on to be heard and being argued by counsel and understood by the Court;

'It is ordered and adjudged by the Court that the Defendant's additional grounds to motion filed June 26, 1964, to set aside the verdict of the jury and judgment and grant a new trial in this cause be, and the same is hereby denied.' (Emphasis supplied)

Thereafter G.F.C. promptly appealed to this court from the original judgment rendered on May 27, 1964.

The appellant's assignment of error No. 1 reads: 'The trial court erred in its order of August 7, 1964, denying defendant's motion for new trial.' This is the only assignment of error mentioned in appellant's brief. Several of the grounds of the original motion for new trial and several of the 'additional grounds' of that motion are treated separately in the brief.

We have said that a general assignment of error on appeal grounded on the refusal of the trial court to grant a motion for a new trial is sufficient to invite a review of ruling as to any ground well stated in the motion and properly argued by appellant; that is, when the motion for new trial is sufficient to specify the precise error alleged to have occurred, a general assignment of error on appeal for refusing the motion is sufficient to bring up for review those matters so precisely set out in the motion. Grimes v. Jackson, 263 Ala. 22, 82 So.2d 315; Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d 1346; Shelley v. Clark 267 Ala. 621, 103 So.2d 743; State v. Goodwyn, 272 Ala. 618, 133 So.2d 375; Louisville & N.R. Co. v. State, 276 Ala. 99, 159 So.2d 458. However, grounds of the motion for new trial relied upon must sufficiently specify the precise error alleged to have occurred. In other words, a ground of a motion for a new trial is to be considered the same as if it were a separate assignment. Matthews v. Maynard, 274 Ala. 330, 148 So.2d 629. A ground of a motion for new trial that the verdict was contrary to law is not sufficient to be treated as an assignment of error. Grimes v. Jackson, supra; Matthews v. Maynard, supra. An assignment of error to the effect that the trial court erred in overruling appellant's motion for new trial is, of course, unavailing when the record does not show a motion for new trial or a judgment overruling such motion. Thomas v. Brook, 274 Ala. 462, 149 So.2d 809.

Appellant treats the judgment of August 7, 1964, as denying the original motion for a new trial, as well as the additional grounds numbered 16 through 21, and argues that the trial court erred in overruling certain of the grounds of the original motion. But the judgment of August 7, 1964, which we have copied above, is limited to action only on the so-called additional grounds. We are not informed as to why that judgment was so worded, but we are governed by the record before us and we cannot read into the judgment of August 7, 1964, language which is not there so as to make that judgment operate as a denial of the original motion for new trial. While we look to the judgment itself, rather than to the caption given it by the clerk in preparing the record, we note that the caption reads: 'Order Defendant's Additional Grounds to Motion for New Trial, Denied.' The same language appears in the margin on page 23 of the record opposite the judgment of August 7, 1964.

It follows that we cannot consider those grounds of the original motion for new trial which appellant argues the trial court erred in denying because they have not been acted upon by the trial court. Moreover, some of the grounds are too general to warrant consideration. Matthews v. Maynard, supra.

We come now to a consideration of the so-called additional grounds of the motion for new trial which were acted upon adversely by the trial court in the judgment of August 7, 1964, and which have been argued in brief of appellant under its assignment of error No. 1, which we have quoted above.

Appellant contends that the trial court erred in denying its motion for new trial in that its ground No. 17 was well taken. That ground is to the effect that the trial court erred in refusing to give at appellant's request its written requested Charge No. 2, which reads: 'Gentlemen of the jury, I charge you that under Count Three of plaintiff's complaint you must return a verdict for the defendant.'

As we have indicated, the trial court at the request of appellant gave the general affirmative charge with hypothesis in favor of appellant as to Count Three. That charge reads as follows:

'I charge you, Gentlemen of the jury, that if you believe the evidence in this case you will find for the defendant as to Count Three of plaintiff's complaint.'

The quoted charge is not in proper form and could have been refused without error. If there had been but one count in the complaint, the form would be proper but since there was more than one count the form was incorrect under a long line of our cases. We quote from Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785, as follows:

'It has long been settled by our decisions that where a complaint contains several counts, special requested written charges which direct the jury if they believe the evidence they should find for the defendant on one or the other of said counts, are properly refused. Crocker v. Lee, 261 Ala. 439, 74 So.2d 429; Railway Express Agency v. Burns, 255 Ala. 557, 52 So.2d 177; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; Christian Benevolent Burial Ass'n v. Huff, 241 Ala. 119, 1 So.2d 390; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; South Central Tel....