K.B. Koosa & Co. v. Warten

• Decision Date: 14 January 1909
• Citation: 158 Ala. 496,48 So. 544
• Parties: K. B. KOOSA & CO. v. WARTEN.
• Court: Alabama Supreme Court

48 So. 544

158 Ala. 496

K. B. KOOSA & CO. v. WARTEN.

Supreme Court of Alabama

January 14, 1909

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by K. B. Koosa & Co. against Henry Warten for damages. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

The bill of exceptions contains the following: "During the progress of the trial defendant's counsel remarked, in the presence and hearing of the jury, that he would have to pay any judgment assessed by the jury. Objection was sustained to this statement by the court, and the counsel remarked that this was a very unusual case, the contest upon hearing to assess damages upon a default judgment. Objection to this remark was made by plaintiffs' counsel, and the court was asked to withdraw same from the jury. Objection was overruled, and exception was duly taken and noted. The witness Craig testified that he had been employed in the dry goods business for six or seven years, had been city salesman for the Steele-Smith Dry Goods Company, and had made periodical visits to the plaintiffs' store immediately before the alleged damage and injury, and had at plaintiffs' request visited the store and examined the goods injured immediately after the injury." Plaintiffs' counsel requested the court to allow the jury to take out with them an itemized list, admitted in evidence as Exhibit 1 to deposition of witness J. B. Koosa, and identified by said witness as being in his handwriting and containing a true and correct statement setting out the reasonable market value of each of 42 items of various kinds of dry goods, both before and after their injury. The following charges were given for defendant: "(2) You can assess as damages in this case only such an amount as you are reasonably satisfied the plaintiffs suffered in fact; and the burden of proof is on the plaintiffs. (3) The plaintiffs are entitled to recover only such damages as the plaintiffs have proven to your reasonable satisfaction."

Francis M. Lowe and Charles J. Dougherty, for appellant.

Tillman Grubb, Bradley & Morrow, for appellees.

DENSON J.

This action by tenants against their landlord to recover damages resulting from water leaking or escaping from water pipes in an upper story and flooding plaintiffs' goods located in the lower story. The complaint counts on negligence on the part of the landlord in the use of defective and unsound pipes. There was a judgment by default against the defendant with a writ of inquiry. On the execution of the writ before the jury, questions were reserved to the rulings of the court on the admissibility of evidence and to the giving of charges for the defendant. These rulings and charges are by the plaintiffs now assigned as error.

The bill of exceptions contains these recitals: "Counsel for defendants said that this was a very unusual case, the contest upon hearing to assess damages upon a default judgment. Objection to said remark was made by counsel for the plaintiff, and the court was asked to withdraw the same from the jury. Objection was overruled, and exception was duly taken and noted." Passing by...