Marsicano v. Phillips

• Decision Date: 26 November 1912
• Citation: 60 So. 553,6 Ala.App. 229
• Parties: MARSICANO v. PHILLIPS.
• Court: Alabama Court of Appeals

60 So. 553

6 Ala.App. 229

MARSICANO v. PHILLIPS.

Court of Appeals of Alabama

November 26, 1912

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

Action by Mrs. Mary Phillips against Joe Marsicano. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint is as follows: "Plaintiff claims of defendant $1,200 damages for the breach of a contract of lease between the plaintiff and defendant on the 7th day of July, 1910 wherein plaintiff leased from defendant the entire second floor of the two-story brick building situated at 523 and 525 Seventeenth street in the city of Ensley, to be used and occupied by the plaintiff as a boarding and rooming house and plaintiff avers that in said contract of lease, and as part of the consideration therefor, the defendant agreed to put the said house in good repair, including making the roof rainproof, and plaintiff avers that defendant has failed and refused to so put the said house in good repair, or to make the said roof rainproof, and that by virtue of his failure to make said roof rainproof this plaintiff has suffered great loss and inconvenience; that the said house would become flooded with water from the defects in said roof when it rained, thereby greatly damaging plaintiff's furniture hurting and injuring her business of keeping boarders rendering a portion of said premises untenable, and make your plaintiff and her children sick, thereby causing them much pain and suffering and expense for doctor's bills and medicine to her great damage in the sum of $1,200. And plaintiff avers that said injury was the proximate consequence of the defendant's failure to comply with the conditions of said lease." The second count states the same facts as the first count, with the allegation that as a part of the lease, and as a part of the consideration therefor, the defendant agreed to put the said house in good repair, including making the roof rainproof, and that defendant, with full knowledge of the defects in said roof, failed to put said house in good repair, or to make the roof rainproof, and by virtue thereof she suffered the injuries and damages alleged in the first count. Motion was made to strike the different allegations of damages, and demurrer was interposed setting up that the counts were vague, indefinite, and uncertain, that they failed to state a cause of action, but the damages therein are remote and not the proximate consequence of the breach alleged, and that the damages could not be more than the cost of repairing the roof.

Frank S. White & Sons, of Birmingham, for appellant.

J. T. Lowry, of Ensley, for appellee.

PELHAM, J.

Quite a number of charges, designated by captions in the margin of the record as "plaintiff's given charges" and "defendant's refused charges," are set out in the transcript; but the transcript contains no bill of exceptions. Counsel for the appellant and appellee argue at some length on the court's rulings in giving and refusing these charges. The transcript nowhere affirmatively shows that the charges were separately requested, or that they were requested in writing, or requested before the jury retired and, not being presented by a bill of exceptions, they cannot be reviewed here. Tuskaloosa Co. v. Logan, 50 Ala. 503; Mobile Savings Bank v. Fry, 69 Ala. 348; A. G. S. R. R. Co. v. Dobbs, 101 Ala. 219, 12 So. 770; Nuckols v. State, 109 Ala. 2, 19 So. 504; Ala. Co. v. Wagnon, 137 Ala. 388, 34 So. 352; Sou. Ry. Co. v. Lynn, 128 Ala. 297, 304, 29 So. 573.

The appellant (defendant below) also assigns as error the ruling of the court on the...