Shiver v. Barrow, 1 Div. 17

• Decision Date: 04 March 1970
• Docket Number: 1 Div. 17
• Citation: 45 Ala.App. 495,232 So.2d 676
• Parties: L. J. SHIVER v. James Wilson BARROW.
• Court: Alabama Court of Civil Appeals

Page 676

232 So.2d 676

45 Ala.App. 495

L. J. SHIVER v. James Wilson BARROW.

1 Div. 17.

Court of Civil Appeals of Alabama.

March 4, 1970.

Chason, Stone & Chason, and Eberhard E. Ball, Bay Minette, for appellant.

Wilters & Brantley, Bay Minette, for appellee.

WRIGHT, Judge.

This case comes on appeal from a judgment in the Circuit Court of Baldwin County, Alabama.

Plaintiff, appellee, James Wilson Barrow, filed suit in assumpsit against L. J. Shiver, based on a contract for the construction of a house at Spanish Fort, Baldwin County, Alabama. The alleged breach of the contract consisted of the failure of appellant to construct the house in a workmanlike manner.

The complaint was originally filed on October 20, 1967. The house was completed and occupied by appellee in the latter part of 1966. The amount claimed as damages originally was $5,000, which was amended in March, 1969, to a claim for $12,000. To the complaint, appellant filed plea of the general issue, failure of appellee to pay full consideration and recoupment for work and labor for $2,000.

Upon trial by jury, verdict was returned for plaintiff-appellee in the amount of $7,000, and for defendant-appellant on his plea of recoupment in the amount of $300. Judgment in accordance with the verdict was entered. Motion for new trial filed by appellant was denied, and this appeal followed on September 15, 1969.

Appellant has filed three assignments of error. Assignment of error 1 charges error in the trial court's denial of a motion for a new trial.

The motion contained eight grounds, all of which were predicated upon the premise that the verdict of the jury was contrary to the law and evidence, and was excessive as a result of bias, passion and prejudice against the defendant.

The effect of assignment 1 is to present as a separate assignment of error every ground stated in the motion for new trial. Therefore, the grounds set out in the motion must undergo scrutiny on review as if they were actually assignments of error. Their sufficiency to require review must be determined. They must specify the precise error alleged to have occurred, and must be properly argued. Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712; General Finance Corp. v. Bradwell, 279 Ala. 437, 186 So.2d 150; Danley v. Marshall Lumber and Mill Co., 277 Ala. 551, 173 So.2d 94.

The grounds of the motion for new trial filed by appellant in this case are utterly general and totally insufficient to advise the trial court of any error it had committed, and thus fails to supply this Court on review with any information as to error in the court below. The ground that the jury's verdict was contrary to the law presents nothing for review. Allred v. Dobbs, supra; General Finance Corp. v. Bradwell, supra; Grimes v. Jackson, 263 Ala. 22, 82 So.2d 315.

The only grounds in the motion for a new trial which are possibly sufficient for review here, are those which allege the verdict of the jury is contrary to the facts and is excessive. Though questionable as to right of review, we will consider the evidence as to its insufficiency to support the verdict, and whether the verdict was excessive.

Briefly, the evidence was, though in conflict, that the appellant built appellee a house; that appellee moved into the house, and shortly thereafter defects began to appear. The plumbing leaked, resulting in damage to floors and ceilings. The hot water heater was hooked up wrong and would not function. The wiring was insufficient, in that circuits were overloaded, junction and terminal boxes were not covered or attached. The main beam in the family room was improperly trussed and was insufficient size to provide support for ceiling and roof. As a result, the ceiling cracked, the roof sagged, and supports were placed to provide additional support. Floor and bathroom tile broke and came loose. Various other defects appeared.

These defects had developed over the period of time since construction, and were getting progressively worse. It was stated that appellant had been advised of some of these problems, but had done nothing.

Appellee's witness stated that it would require from eight to twelve thousand dollars to repair the defects, which in his opinion, as a builder of twenty-five years experience, were due to unworkmanlike construction.

No ground for new trial is more carefully considered than that of the insufficiency of the evidence to support the verdict. Verdicts are presumed to be correct. When the trial judge refuses to grant a new trial, that presumption is strengthened. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Allred v. Dobbs, supra.

On appeal, all favorable presumptions are given in favor of the verdict of the jury, and the verdict will not be disturbed unless it is plainly and manifestly unjust. Allred v. Dobbs, supra; Decker v. Hays, 282 Ala. 93, 209 So.2d 378; Fuller v. Yancey, 281 Ala. 126, 199 So.2d 666.

After allowing all favorable presumptions in favor of the correctness of the verdict, we fail to find it contrary to the preponderance of the evidence or manifestly unjust. There is no indication that the jury was swayed or influenced by bias, prejudice or passion.

Assignment of error 2 charges error in the admission into evidence, over objection of appellant, several photographs taken by appellee over a period of time, showing conditions then existing in the house. These were introduced to show matters resulting from the alleged poor workmanship of appellant.

The basis of ap...