Kinney v. Glenn

• Decision Date: 24 October 1940
• Docket Number: 6 Div. 737.
• Citation: 198 So. 256,240 Ala. 202
• Parties: KINNEY v. GLENN.
• Court: Alabama Supreme Court

198 So. 256

240 Ala. 202

KINNEY v. GLENN.

6 Div. 737.

Supreme Court of Alabama

October 24, 1940

Certiorari to Court of Appeals.

Petition of E. C. Kinney for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Kinney v. Glenn, 198 So. 250.

Writ denied.

Erle Pettus, of Birmingham, for petitioner.

Jim Gibson, of Birmingham, opposed.

FOSTER Justice.

This is a detinue action for cotton in bales and cotton seed. Plaintiff gave a replevin bond under section 7391, Code. His right of action was based upon title acquired or claimed under a mortgage purporting to have been executed by defendant.

The court charged the jury that plaintiff's title depended upon whether defendant signed the mortgage. We do not understand from the opinion that there was exception to this oral charge. But the court gave for plaintiff a written charge in which the word used was executed rather than signed. Plaintiff requested two charges in which his right is made to depend upon whether defendant "signed or authorized his signature to be affixed" to it. They were refused. The Court of Appeals states in its opinion that there was not a scintilla of evidence which tends to show that defendant executed the note except by signing his own name. Whether he did or not was the one matter of controversy. The oral charge of the court should be construed in the light of the issues to determine if it was erroneous or even misleading. The Court of Appeals finds that it was not misleading and that the refused charges were not necessary to make the issue clear to the jury. It is apparent to us that the incidents of the trial could very well justify that conclusion. We agree with that court in that connection.

Another contention made by petitioner here is that there was error in the following portion of the oral charge, to which exception was taken: "In the event the jury found for the defendant, it would be necessary for the jury to assess the defendant's damages for the detention of the cotton and the cotton seed involved in the suit from October 6, 1936, the date said property was taken from defendant, by the sheriff, up to the date of trial; that the proper method to be employed in arriving at damages for detention, would be to find, first, the value of said cotton and cotton seed, on October 6, 1936, and to this sum, add interest thereon at the rate of 6 per cent. per annum from October 6, 1936, to date of trial, and then, second, find the value of said cotton and cotton seed on the date of the trial, and to then deduct this last mentioned sum from the value of said cotton and cotton seed on October 6, 1936, plus interest thereon as above stated, and the difference between the two sums would be the amount of defendant's damages for detention."

The question of interest in this connection does not seem to have been directly decided by this Court. But what has been decided is that interest should not be allowed on the amount found to be the value of the hire and use of the property when such hire and use is the proper measure of damages for detention. But the amount of such hire and use is the incident in question, and to add the interest on that amount to it, was said in Fralick v. Presley, 29 Ala. 457 65 Am.Dec. 413, to add one incident to another. And in Ex parte Allen, 166 Ala. 111, 52 So. 44, it is made perfectly plain by saying that "Interest on the value of the hire or use is not an element of the damages."

Those cases are cited in Louisville & Nashville R. R. Co. v James, 204 Ala. 604, 86 So. 906, 907, to explain its meaning when it is there stated that the damages for detention are measured by "the value of the use or hire thereof during the period of wrongful detention, without interest or damages for deterioration in value from ordinary wear and tear." The interest there referred to is on the amount of the value of the use and hire. See 18 Corpus Juris 1024, 1025, section 101. But those cases are not authoritative where the property has no value for its use and hire, but may be sold for cash, in which the cash...