Opinion
8 Div. 466.
October 6, 1949.
Appeal from the Circuit Court, Marshall County, J. S. Stone, J.
H. H. Conway, Albertville, for appellants.
It was error to permit plaintiff to testify as to a transaction with a deceased person who acted in a representative or fiduciary relation with defendants. Code 1940; Tit. 7, § 33; Dean v. Thames, 234 Ala. 388, 175 So. 257; Birmingham Purchasing Co. v. Colvin, 219 Ala. 662, 123 So. 45; Guin v. Guin, 196 Ala. 221, 72 So. 74; Tabler v. Sheffield Land Iron Coal Co., 87 Ala. 305, 6 So. 196; First National Bank v. Bain, 237 Ala. 580, 188 So. 64.
Marion F. Lusk, Guntersville, for appellees.
Objection to testimony of plaintiffs regarding transactions with or statements by defendants' agent on ground of incompetency was waived by defendants. Chapman v. Peebles, 84 Ala. 283, 4 So. 273; Warner v. Warner, 248 Ala. 556, 28 So.2d 701; 70 C.J. 370. But if objection had been properly made and insisted upon, the error would have been harmless since all that Seibold said and did was freely admitted by defendants. 2 Alabama Digest, Appeal and Error, 1051.
Appellees brought two separate suits in trover against the defendants (appellants) for the alleged conversion of baled cotton. Ralph Johnson was the plaintiff in one of the suits and James Darnell and Ralph Johnson were the plaintiffs in the other. By consent of the parties said suits were consolidated and tried as one case, the trial resulting in separate verdicts for the plaintiffs in both suits. Upon these verdicts one judgment was entered and after motion for new trial was overruled, the defendants appealed.
The appellants insist that the court erred in overruling their objection made to the testimony of the plaintiff Ralph Johnson in respect to a transaction and conversation with defendants' agent Jack Seibold, who has since died, and hence the court also erred in overruling the defendants' motion for new trial.
The plaintiff's incompetency to testify, under the common law, to a transaction or conversation with a deceased person, who acted in a representative or fiduciary capacity at the time, was not removed by the statute unless he was called to testify by one to whom such interest is opposed. Code of 1940, Tit. 7, § 433. But when no objection is made to the competency of the witness or other specific objection assigned to the admissibility of the testimony, the objection operates as a waiver of all other objections. Alabama G. S. R. Co. v. Bailey, 112 Ala. 167, 20 So. 313; Warner et al. v. Warner et al., 248 Ala. 556, 28 So.2d 701; Rogers v. Austill, 213 Ala. 163, 104 So. 321.
The only objection made to the testimony of Johnson was that it "is not relevant". The circuit court will not be put in error for overruling this objection. The testimony of the witness Rolfe was not attended with any such infirmity and the objection to this testimony was overruled Without error. The testimony offered tended to sustain the plaintiff's case.
The court did not err in refusing the affirmative charge.
Affirmed.
FOSTER, LAWSON and SIMPSON, JJ., concur.