Gregath v. Bates
Decision Date | 24 May 1978 |
Parties | John E. GREGATH et al. v. Betty Faye BATES et al. Civ. 1429. |
Court | Alabama Court of Civil Appeals |
Steve Skipper, Tom Drake, Cullman, for appellants.
Marshall H. Sims, Trussville, for appellees.
This is a nuisance case.
The plaintiffs filed suit in the Circuit Court of Cullman County against John Gregath and Neal Bates, owners of their respective hog parlors. The jury found in favor of the plaintiffs and assessed damages against Gregath at $8,000 and against Bates at $1,000. The trial court thereafter enjoined the defendants from operating their hog parlors. Defendant-Gregath appeals.
At the outset, we deem it appropriate to set out the plaintiffs' complaint, in pertinent part, as follows:
As noted above, the jury found in favor of the plaintiffs and assessed damages against the defendants. The trial court, furthermore, enjoined the defendants from operating these hog parlors. The defendant-Gregath appeals urging reversal on several aspects.
The pertinent issues, as we perceive them, are as follows: 1. Did the trial court in refusing to admit certain testimony during the course of the trial? 2. Was expert testimony properly admitted? 3. Did the trial court err in refusing to admit testimony concerning conviction of a crime to impeach a witness? 4. Did the trial court err in awarding both damages and injunctive relief? Put another way, did the plaintiffs have to elect between remedies? 5. Did the court err to reversal in its jury charge relating to mental suffering?
At this point we note there is sufficient evidence in the record to support a finding of a nuisance within the purview of Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974). Suffice it to say, there was testimony to indicate numerous occasions in which dead hogs were left in the open to decompose. The defendant had built lagoons to dispose of waste matter coming from the hog parlor. There was evidence to show, however, leakage or seepage from these lagoons into a creek and pond situated on the plaintiffs' land. The record is replete with testimony concerning strong obnoxious, and sickening odors, along with the presence of flies coming onto plaintiffs' property. While there is testimony offered by the defendant to the contrary, we cannot say the finding of a nuisance is against the great weight of the evidence as contended by the appellant.
Defendant-appellant submits the trial court erred in refusing to admit certain testimony during the trial. Specifically, defendant argues that one of his witnesses was not allowed to give his opinion as to the value of plaintiffs' real property. Furthermore, defendant claims a denial of his right to fully cross-examine witnesses.
The general rule in Alabama is that an owner of real property may testify to the value of such property without other qualifications. This rule is premised on the basis that the fact of ownership renders the owner competent to testify to such value. See State v. Hastie, Ala., 333 So.2d 795 (1976).
However, this general rule does not extend the ability of the witness to testify as to the value of another person's property absent a showing of expert qualifications. The witness in the present case did not qualify as an expert witness and thus, due to the above, could not testify as to the value of plaintiff's realty, as the court below rightfully held.
As to the scope and extent of cross-examination, we would note that such rests in the sound discretion of the trial court. See State v. Hargrove, 282 Ala. 13, 208 So.2d 444 (1968). Prejudicial error must be shown in order to obtain a reversal for gross abuse of discretion in regard to the scope and extent of cross-examination. See Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).
Our careful review of the record reveals no gross abuse of discretion by the trial court requiring reversal.
The defendant alleges improper expert testimony was admitted by the trial court over objection by the defendant.
As a preliminary proposition, whether or not an expert witness is shown to be qualified is addressed to the discretion of the trial court. This ruling will not be reversed unless it clearly appears that it was prejudicially erroneous and worked an injury to the appellant's cause. See Hewett v. McGaster, 272 Ala. 498, 133 So.2d 189 (1961).
We find no merit in defendant's...
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