Roberson v. McCarley

• Decision Date: 29 October 1953
• Docket Number: 5 Div. 544
• Citation: 259 Ala. 583,67 So.2d 814
• Parties: ROBERSON v. McCARLEY.
• Court: Alabama Supreme Court

Page 814

67 So.2d 814

259 Ala. 583

ROBERSON v. McCARLEY.

5 Div. 544.

Supreme Court of Alabama.

Oct. 29, 1953.

Rehearing Denied Dec. 17, 1953.

Robt. Edw. Varner and Edw. H. Reynolds, Tuskegee, and Ben Hardeman, Montgomery, for appellant.

Wm. C. Hare and Powell, Tuskegee, for appellee.

SIMPSON, Justice.

Plaintiff McCarley recovered a judgment of $4,000 against the defendant, Roberson, in an action of malicious prosecution and Roberson has appealed.

We entertain the view that no error to reverse intervened pending trial; but on the whole evidence, do conclude the damages awarded were excessive and that a remittitur should be ordered. Code 1940, Title 7, § 811. In this view, therefore, we will discuss but briefly the other assignments of error.

The matter of the continuance requested by the defendant because of absent witnesses was within the discretion of the trial court and, unless a palpable abuse is shown by its refusal, his ruling in that regard will not be revised on appeal. With respect to the defendant's son overseas, sufficient diligence on the part of defendant was not shown. It was not made known to the court when this proposed witness had taken his departure or that it would have been impossible to take his deposition or that, if taken, the evidence adduced would not have been satisfactory, etc.; and as to the other witness, unnamed, no showing at all was made of the materiality of that witness' testimony. The court cannot be put in error for denying the continuance because of these absent witnesses. Ex parte Driver, 258 Ala. 233, 62 So.2d 241; Lutz v. Van Heynigen Brokerage Co., 202 Ala. 234, 80 So. 72.

So also, and governed by the same rule, there was no error in the refusal of the court to suspend the trial in order that witness Scott might obtain his books and records. The court indicated his consent to allow the books to be put in evidence if the witness should procure them before the trial was concluded. No gross abuse of discretion is shown in this ruling. Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239; Continental Casualty Co. v. Ogburn, 186 Ala. 398, 64 So. 619.

There was likewise no error in permitting the plaintiff to give his estimate of the value of his real estate holdings. He was familiar with the property and testified that he knew the market value. This, prima facie, was sufficient to qualify him to testify. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; American Ins. Co. of Newark, N. J. v. Fuller, 224 Ala. 387, 140 So. 555; 159 A.L.R. 30.

The other contentions for error with respect to rulings on the evidence may be disposed of by observing that either the rulings were correct or seasonable objections and exceptions were not taken.

We also entertain the view there was no error in denying the motion for a new trial based on newly discovered evidence. Without considering the question of diligence, the evidence proposed by the new witness, Shannon, added but little and would have been merely cumulative, since what he deposed was already in evidence in the form of the deed of conveyance to him from plaintiff, which fixed the date of the transfer. Collins v. State, 217 Ala. 212, 115 So. 223.

We come now to the evidence. The plaintiff was engaged in several businesses in Tuskegee, Alabama, to wit, the automobile business; a finance company and jewelry store in partnership with one Fincher; and a real estate development business in partnership with Shannon. In 1949 he fell into serious financial difficulties, had given a $2,000 bad check for the purchase of an automobile and was under indictment for it in Montgomery County for false pretense (this case was finally disposed of by the imposition of a $50 fine). Defendant was in the secondhand automobile business in Montgomery and in the latter part of the year 1949 plaintiff came to him for help. On December 19, 1949, defendant took over plaintiff's automobile business, one of the considerations of which was the immediate furnishing to plaintiff the $2,000 to settle the criminal case in Montgomery, which was furnished. The business was incorporated with Roberson and his family owning the stock and McCarley being made the head salesman. In February, 1950, Roberson's bookkeeper discovered that McCarley had been retaining money from the sales of automobiles, whereupon Roberson consulted his attorney for advice. The attorney counseled him to take no criminal action then, but finally on Roberson's discovering more withholdings by McCarley the attorney did recommend criminal action, so on February 22, 1950, he swore out the three warrants for embezzlement against McCarley which are the bases of this suit. McCarley was bound over to the grand jury. The grand jury returned a true bill and the case was docketed for trial at the next term of the Macon County Circuit Court. When the case was called for trial Roberson was present to testify, but it was continued to the next term due to the absence of a material witness for the State. When the case was next called for trial, Roberson was not present and a nolle prosequi was entered. Roberson, however, was not subpoenaed or notified of the second setting of the case....