Yates v. Barnett

• Decision Date: 24 March 1927
• Docket Number: 5 Div. 971
• Citation: 215 Ala. 554,112 So. 122
• Parties: YATES v. BARNETT.
• Court: Alabama Supreme Court

112 So. 122

215 Ala. 554

YATES v. BARNETT.

5 Div. 971

Supreme Court of Alabama

March 24, 1927

Appeal from Circuit Court, Randolph County; S.L. Brewer, Judge.

Action for damages by M.D. Barnett against D.M. Yates, as owner of the West Point Overland Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Hooton & Moon, of Roanoke, for appellant.

Pruet &amp Glass, of Ashland, for appellee.

THOMAS J.

The case was tried upon counts 1 and 5. There was a jury and verdict for the plaintiff. The record proper--"judgment entry"--fails to show a specific ruling on demurrer, and we do not consider the assignment of errors predicated on ruling on demurrer to the complaint. Berger v Dempster, 204 Ala. 305, 85 So. 392; Seaboard Air Line Ry. Co. v. Pemberton, 202 Ala. 55, 79 So. 393; Ala. Chemical Co. v. Niles, 156 Ala. 298, 47 So 239.

To present for review the denial of the motion for a new trial that ruling and exception thereto must be duly incorporated in the bill of exceptions. Stokes v. Hinton, 197 Ala. 230, 72 So. 503; Smith v. Yearwood, 197 Ala. 680, 73 So. 384; L. & N.R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Birmingham Water Works v. Justice, 204 Ala. 547, 86 So. 389; Pacific Fire Ins. Co. of N.Y. v. Burnett, 212 Ala. 287, 102 So. 214.

There were conflicting reasonable tendencies of evidence, or open to reasonable inferences unfavorable to him who requests such charge, and affirmative instruction should therefore properly be refused. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

Refused charge 4 was sufficiently covered by given charge 2 and the oral charge.

There was no error in allowing the witness Barnett, who had qualified as an expert machinist, to answer the question of the effect on the motor of driving a new car at an excessive rate of speed. It was material and relevant with the other evidence and the issues of fact presented to the jury. The witness, as an expert, may give an opinion, after inspection or with a knowledge of the facts made the subject of inquiry, whether the motor was in first-class condition at the time and circumstances inquired about. Burton & Son v. May, 212 Ala. 435, 103 So. 46.

The objection of plaintiff to the question to Barnett, whether he "made a proposition to settle," was properly sustained. It called for the fact and substance of a bona fide offer of compromise of the suit and claim thereby made and such offers are regarded in nature as confidential overtures of pacification. The policy of the law favors amicable...