White v. Henry

• Decision Date: 21 December 1950
• Docket Number: 6 Div. 990
• Citation: 49 So.2d 779,255 Ala. 7
• Parties: WHITE v. HENRY.
• Court: Alabama Supreme Court

Page 779

49 So.2d 779

255 Ala. 7

WHITE v. HENRY.

6 Div. 990.

Supreme Court of Alabama.

Dec. 21, 1950.

Jas. B. Smiley, of Birmingham, for appellant.

Earl McBee and C. Eugene Fowler, of Birmingham, for appellee.

BROWN, Justice.

This is an action of assumpsit by the appellee against the appellant for failing to deliver two truck loads of household goods and other property at the designated place of delivery as provided in the contract between the plaintiff and the defendant, appellant here, and for damage to said property and loss of part thereof.

The case was submitted to the jury on counts 2, 4, 5 and 6 of the complaint and the plea of the general issue pleaded in short by consent. Some of said counts of the complaint, aver that the defendant entered into a contract with plaintiff to transport said property from Orlando, Florida, to plaintiff's home eight miles north of Montgomery, where plaintiff's wife was waiting to receive same, for a cash consideration of $110.00 for the haulage and delivery.

There is a conflict in the evidence as to whether the amount paid in advance for the haulage and delivery was the full contract price. The plaintiff's testimony goes to show that it was, but the defendant testified that it was merely an advance payment and that the balance was to be paid upon delivery, said alleged balance being $200.00. The question presented by this conflicting evidence was for the jury.

Plaintiff's evidence goes to show that in the shipment was a number of rabbits kept for breeding purposes; a set of antique Haviland table china that had been in his family for over seventy-five years, that this china was practically destroyed. This this shipment was to be delivered to the plaintiff's wife eight miles north of Montgomery on or before 1:30 o'clock A. M. on the 15th of February, 1945; that the trucks were late in reaching the destination and when they arrived the defendant claimed that there was a balance due for the shipment and refused to deliver same to plaintiff's wife. Defendant carried the property to Birmingham and stored it and kept it in storage for a week or more, refusing to deliver the same unless the claimed balance for haulage, the storage charges and taxes were paid. The plaintiff in order to get his property in its damaged condition paid the alleged claim and taxes under circumstances authorizing an inference that it was paid under protest. The goods in damaged condition were then carried to plaintiff's home and delivered. This suit is brought to recover the excess charges of $366.20 for transportation and storage and the damage to the goods delivered and the loss occasioned by negligence in handling and delay of delivery. The plaintiff's testimony as to the value of the articles lost and as to the amount of the damage is not disputed.

The first assignment of error argued is that the court erred in overruling the defendant's motion for a new trial. This will be treated later.

The second assignment of error is predicated on the refusal by the court of thirty requested written charges including the affirmative charge. As we have shown, the defendant was not due the affirmative charge. Therefore, appellant can take nothing by said assignment of error, which is predicated on this refusal of all thirty of said charges. Sovereign Camp, W. O. W. v. Waller, 232 Ala. 170, 167 So. 563; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645.

The only statement made in brief as to the ruling of the court on the demurrer to the complaint, the basis of assignment of error three, is 'the court erred in overruling demurrer to counts 2, 4, 5 and 6 and also to count 4, as amended. This, however, would be tantamount to giving the affirmative charge in favor of defendant. This should have been done as pointed out in error No. 2.' This statement is merely a repetition of the assignment of error and is not sufficient to invite consideration. Western Union Telegraph Co. v. Benson, 159 Ala. 254, 48 So. 712; 5 Mayfield's Digest, § 32, p. 32.

While there were some objections put to the witness identifying exhibits 2 and 3 and exceptions to the court's rulings thereon, such rulings were not assigned as error, nor was there any objection to the exhibits when offered in evidence. The only objection made to plaintiff's exhibit 4 was a general objection, assigning no ground. Such objection was unavailing upon which to predicate error. Sanders v. Knox, 57 Ala. 80, 81; Johnston v. Isley, 240 Ala. 217, 198 So. 348; Conway v. Robinson, 216 Ala. 495, 113 So. 531; Southern Ry. Co. v. Jordan, 192 Ala. 528, 68 So. 418.

One of the contentions of the defendant was that he did not make the contract for hauling plaintiff's property from Orlando, Florida, but that it was made by American Van Lines, Inc. Said exhibit 6 was offered to show that American Van Lines, Inc. had no certificate of convenience and necessity to haul goods from Orlando to its destination north of Montgomery on U. S. Highway 31. The defendant objected to the proffered...