Industrial Sav. Bank v. Mitchell
| Citation | 140 So. 449,25 Ala.App. 13 |
| Decision Date | 12 January 1932 |
| Docket Number | 6 Div. 892. |
| Parties | INDUSTRIAL SAV. BANK v. MITCHELL. |
| Court | Alabama Court of Appeals |
Rehearing Denied Feb. 2, 1932.
Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.
Action for damages by Emily Mitchell against the Industrial Savings Bank. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Industrial Savings Bank v Mitchell (6 Div. 121) 140 So. 452.
Bradley, Baldwin, All & White, E. L. All, and W M. Neal, all of Birmingham, for appellant.
W. A. Jacobs, of Birmingham, for appellee.
The case went to the jury upon counts 1 and 2 of the complaint. To each of these counts appellant interposed numerous grounds of demurrer, but the only objection urged in brief is that one count contains two causes of action. The gravamen of each is a personal wrong, of the nature involved in Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L. R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740. The additional averments, by way of inducement, of facts giving color and tone and furnishing the background of the basic facts relied upon for a recovery, do not cause a separate cause of action.
Appellant introduced as a witness L. R. Hanna, and by him proved a portion of a conversation or transaction had with one Perkinson. This entitled appellee to prove the remainder of what was said and done on that occasion.
Appellant complains that it was not allowed to prove by its witness and president what was his "understanding" with reference to the closing of a transaction. That involved only the conclusion of the witness and was properly disallowed. Mobile, J. & K. C. R. R. Co. v. Hawkins, 163 Ala. 565, 51 So. 37; Holman v. Clark, 148 Ala. 286, 41 So. 765; Henderson v. Brunson, 141 Ala. 674, 37 So. 549.
Appellee was entitled to offer proof that appellant's president had declared he could send to the penitentiary plaintiff's husband and that such statement was communicated to this plaintiff, prior to the visit of Mr. Naff upon the occasion complained of. This shed light upon the purpose of such visit, as also upon the reaction of plaintiff to such visit, following such statement.
The record does not support assignment numbered 4, for instead of showing (as the assignment says) the court overruled defendant's objection to the question, it shows on the contrary defendant asked the question.
The question involved in assignment 5 was obviously an improper one-a statement by the witness to an unnamed person that "they" (whoever that may have been) had complained (where or to whom not being stated) of appellant's agent's visit to plaintiff's home.
Appellant's witness Naff admitted knowing plaintiff had been ill-had been in the hospital-but was uncertain as to the date when he learned such facts, and denied that he knew, before going to the house, that plaintiff was in bed. The court, over appellant's objection, allowed plaintiff to show by this witness that no one instructed him to send flowers to the hospital to plaintiff while she was in the hospital. That fact was foreign to and could have no bearing whatever upon the inquiry involved in this case and should not have been in evidence. However, a trial court may not be reversed for admitting testimony which is immaterial and irrelevant, but which could not have influenced the jury's decision. Tutwiler v. Burns, 160 Ala. 386, 49 So. 455; Burgin et al. v. Stewart, 216 Ala. 663, 114 So. 182; Snedecor v. Pope, 143 Ala. 275, 39 So. 318. Moreover, appellant's grounds of objection that such testimony was "illegal, irrelevant, incompetent," do not present anything for review, according to the Supreme Court. Harvey v. Bodman, 212 Ala. 503, 103 So. 569. The foregoing is sufficient to dispose of assignment 12 also.
Appellant's refused charges to the effect that the only basis of recovery is for what is alleged to have occurred on the occasion of the visit, and that the jury couldn't assess damages for any occurrence subsequent to such visit, were misleading. They tended to withdraw from the jury all consideration of the resultant and subsequent effect, if any, upon plaintiff's physical and mental condition, proximately caused by and flowing from such visit.
Appellant's charge as contained in the record, "the only material issues in this case for which damages are claimed are as to what occurred," etc., is not readily understood. Damages are not claimed for issues, but for alleged wrongs.
The record does not show what, if indeed any, argument was made by plaintiff's counsel; hence, so far as is shown, appellant's requested charge replying to what was "argued by counsel for plaintiff" was properly refused.
When this case was given to the jury, the record shows that it was agreed by the attorneys for both parties to the suit that the verdict might be received by the bailiff and, if not in form, be put in form. The jury after some two hours' consideration of the case handed the bailiff two verdicts; one finding for the plaintiff under count 1 of the complaint and assessing her damages under that count at $100. The other verdict found for the plaintiff under count 2 of the complaint and assessed the plaintiff's damages under that count at $900. The members of the jury dispersed. The next morning the court reassembled the jury, declined to receive these verdicts, and instructed them that under the law they could only return one verdict in the case, informing them that if they found under one count only to specify or designate the count, or, "if you find for the plaintiff under both counts of the complaint, you may simply say, we, the jury, find for the plaintiff and against the defendant and assess the plaintiff's damages at so much." In accordance with the instructions the jury returned one verdict fixing the plaintiff's damages at $1,000. By appropriate objections the appellant challenged the action of the trial court which is here assigned as error.
In this connection the trial court rendered an opinion, which appears in the record, wherein the matters involved are ably discussed. The said opinion of the trial court is as follows:
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Bank of Loretto v. Bobo, 8 Div. 31
...prove all that was said at the same time on the same subject. Advertiser Co. v. Jones, 169 Ala. 196, 53 So. 759; Industrial Sav. Bank v. Mitchell, 25 Ala.App. 13, 40 So. 449. The questions were permissible on other grounds also, but we refrain from a discussion in the interest of Assignment......
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Pumphrey v. Empire Lath and Plaster
...can be corrected after discharge of the jury "whether the jury had or had not separated"); see also Indus. Savings Bank v. Mitchell (Ala.App. 1932), 25 Ala.App. 13, 140 So. 449, 452 (relying on Alabama's rule that a verdict has not been rendered until it has been accepted by the court to al......
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Lee v. State, 7 Div. 268
...of evidence on the grounds that it was incompetent, immaterial and irrelevant presents no question to review. Industrial Savings Bank v. Mitchell, 25 Ala.App. 13, 140 So. 449(8), cert. den., 224 Ala. 335, 140 So. 452; Harvey v. Bodman, We find no error in the record to reverse the judgment ......