Steele-Smith Dry Goods Co. v. Blythe

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 721.
• Citation: 94 So. 281,208 Ala. 288
• Parties: STEELE-SMITH DRY GOODS CO. v. BLYTHE.
• Court: Alabama Supreme Court

94 So. 281

208 Ala. 288

STEELE-SMITH DRY GOODS CO. v. BLYTHE.

6 Div. 721.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action for damages by Mrs. J. H. Blythe against the Steele-Smith Dry Goods Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

T. A Saulsbury, of Birmingham, for appellant.

J. B Aird, Jr., of Birmingham, for appellee.

ANDERSON C.J.

Count A of the complaint is substantially like the one held sufficient in the case of Greenwood Café v Lovinggood, 197 Ala. 34, 72 So. 354, and the trial court did not err in overruling the demurrer thereto.

The trial court did not err in the rulings in permitting the questions complained of to be asked the witness Dr. Elkourie. He was an expert, and the plaintiff had the right to elicit his opinion, based upon an hypothesis of her evidence. He had also treated her, and was capable of advancing an opinion as to the cause and nature of her illness and the probable effect it would have upon her future physical status. Moreover, the witness was guarded and conservative in his answers as to the future effect the illness might produce. Southern Co. v. Perrine, 191 Ala. 411, 67 So. 601; B. R. & L. Co. v. Fisher, 173 Ala. 627, 55 So. 995; Briggs v. B. R. L. & P. Co., 194 Ala. 273, 69 So. 926; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763.

The trial court erred in giving at plaintiff's request the written charge set out in and made the basis of the second assignment of error. It pretermits the fact that the witness must have willfully or corruptly sworn falsely as to a material fact. A witness may swear falsely, innocently or inadvertently, to some material fact in the case, and the jury may have believed it due to a mere error in observation or of a failure to recall a material detail of the matter deposed about; and though the misstatement was not corruptly or willfully false, and was not such a one as to create in the minds of the jury a belief or conviction that the testimony of the witness as to other material facts was unworthy of credit, yet under such a charge the jury could capriciously disregard material testimony in the case, of the truth of which they were fully convinced. Keef v. State, 7 Ala. App. 15, 60 So. 963; Prater v. State, 107 Ala. 26, 18 So. 238; Gillespie v. Hester, 160 Ala....