Opinion
8 Div. 903.
March 6, 1951. Rehearing Denied April 3, 1951.
Appeal from the Circuit Court, Marshall County, Reuben H. Wright, Special Judge.
Marion F. Lusk, of Guntersville, for appellant.
The trial judge seriously prejudiced defendant's case by reiterating in the presence of the jury that in order for Plea 6 to be good, defendant would have to show that the advice given was by an Alabama lawyer or by an attorney learned in the law of Alabama. Schiavo v. Cozzolino, 134 Conn. 388, 57 A.2d 723, 3 A.L.R.2d 214; Western Union Tel. Co. v. Northcutt, 158 Ala. 539, 48 So. 553; 132 A.L.R. 38; Birmingham Ry. L. P. Co. v. Smith, 14 Ala. App. 264, 69 So. 910; Furhman v. Huntsville, 54 Ala. 263; Lamar v. King, 168 Ala. 285, 53 So. 279; American Ry. Exp. Co. v. Dunnaway, 207 Ala. 392, 92 So. 780; Owens v. State, 19 Ala. App. 621, 99 So. 774; McDonnell v. Skidmore, 266 App. Div. 869, 42 N.Y.S.2d 619; Closgard Wardrobe Co. v. Normandy, 158 Va. 50, 163 S.E. 355, 81 A.L.R. 511. A demand by the Bank on Hooker to return the money he had overdrawn from his deposit account was not a prerequisite to its right to sue him in attachment, and he should not have been allowed to testify that no claim had been asserted against him prior to the attachment. Prowinsky v. Second Nat. Bank, 49 App.D.C. 363, 265 F. 1003, 12 A.L.R. 360; 7 Am.Jur. 442; Hinds v. Wiles, 12 Ala. App. 596, 68 So. 556. Count 9 claimed for time lost in defending the attachment suit, and it was prejudicial to allow plaintiff to testify that he lost time in connection with the suit, or in procuring the discharge of the attachment, since such activities may well have been in getting the suit disposed of by settlement rather than by resistance. Alabama G. S. R. Co. v. Tapia, 94 Ala. 226, 10 So. 236; Alabama G. S. R. Co. v. Killian, 17 Ala. App. 124, 82 So. 572; Mobile L. R. Co. v. Fuller, 18 Ala. App. 301, 92 So. 89. The plaintiff should not have been permitted to testify that in order to borrow money he had to incorporate his business and transfer all his property to the corporation. Askin Marine Co. v. King, 22 Ala. App. 452, 116 So. 804; Lambert v. Jefferson, 251 Ala. 5, 36 So.2d 594. Allowing plaintiff to testify that he did not know of any inquiry regarding his property being made by the bank prior to suing out the attachment, was patent error, since many such inquiries could have been made without his knowledge. First Nat. Bank of Xenia, Ohio v. Stewart, 114 U.S. 224, 5 S.Ct. 845, 29 L.Ed. 101; Planters' Chemical Oil Co. v. Stearnes, 189 Ala. 503, 66 So. 699. The Court having allowed plaintiff over defendant's objections to testify that he had formed a corporation after the attachment was levied, and that he lost money in so doing should' have allowed defendant to cross-examine plaintiff as to whether he would be reluctant to part with his stock in the new corporation at $100 per share, and if the new corporation did not have back of it the buying facilities of a much larger corporation. Woodall v. Western Union Tel. Co., 210 Ala. 265, 97 So. 830; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645. The trial judge seriously prejudiced defendant's rights by stating the presence of the jury as a reason for not allowing plaintiff to be cross-examined as to his reluctance to part with his stock in his new corporation, that "the true test would be the market value; a man might have a diamond ring worth $100 but because it was his mother's he wouldn't sell it for $2000;" such remark being flagrantly flippant and beside the point, sentimental value not being even remotely an issue in the case. Schiavo v. Cozzolino, supra; Western Union Tel. Co. v. Northcutt, supra; Birmingham, R. L. P. Co. v. Smith, supra. Plaintiff's residence in Guntersville being one of the material issues in the case, he should not have been permitted to testify that he established a residence at the Glover Hotel and had resided continuously at Guntersville since then. Ham v. State, 156 Ala. 643, 47 So. 126; Bradford v. Haggerthy, 11 Ala. 698. One of the material issues in the case being plaintiff's residence in Guntersville, plaintiff should not have been allowed to testify that when he left Tennessee to come to Guntersville he planned to make his home in Guntersville, and that his intentions were to reside there, those being matters for the jury to decide. Bland v. Putman, 132 Ala. 613, 32 So. 616; Ham v. State, supra; Bradford v. Haggerthy, supra. Plaintiff should not have been allowed to testify that he told his friends in Tennessee that he was coming to Guntersville to establish his residence, since this was plainly self-serving and hearsay. 20 Am.Jur. p. 470; Alabama Digest, Evidence, 271, 1, 2. Plaintiff having complained that his credit was impaired by the attachment, defendant should have been allowed to prove that at no time while plaintiff was borrowing money from the Citizens Bank of Guntersville did the Bank require of him any security or extra protection because of any knowledge on the bank's part of the attachment suit. 15 Am.Jur. 792. Plaintiff having complained that his credit had been impaired by the attachment, and that he was unable to get a loan at the First National Bank, defendant should have been allowed to show by the bank's president Willis, that at no time after the attachment and while plaintiff had any connection with the bank, did the bank deny him a loan or the extension or increase of a loan or any of the facilities of the bank on the ground that his account there had been attached. 15 Am.Jur. 792. Defendant having asked plaintiff in interrogatories; "Did you on or about January 3, 1946 receive from defendant bank a statement of your account? (e) If so, please attach it to your answer as an exhibit or explain what has become of it?", and the witness having admitted that he received statements including that date, the court erred in not striking the following portion of defendant's answer: "I relied upon the verbal information furnished me when I inquired at the bank for the amount then credited to my account", such testimony being illegal because stating a conclusion on a material issue in the case, viz.: plaintiff's good faith vel non in drawing out $1000 which the bank had inadvertently credited to his account. Brotherhood of Painters, etc. v. Trimm, 19 Ala. App. 429, 97 So. 770; Bryson v. Phelps, 220 Ala. 389, 125 So. 798; Utley v. Stevens, 221 Ala. 666, 130 So. 405. The statement in witness Shepherd's answer to interrogatory THREE-A: The error was discovered about March 1st, was responsive when considered in connection with interrogatory TWO-A, and answer thereto, and in view of the issues in the case, and it was prejudicial error to exclude it. Pratt Consolidated Coal Co. v. Davidson, 173 Ala. 667, 55 So. 886. If plaintiff deliberately refused to avoid loss or damage after the attachment, he should not have been awarded any compensatory or actual damages. The jury should have been allowed to say whether there had been such a deliberate refusal. Moses Sons v. Lockwood, 54 App.D.C. 115, 295 F. 936, 33 A.L.R. 1467; Griffin v. Oklahoma Natural Gas Corp., 132 Kan. 843, 297 P. 662, 81 A.L.R. p. 282; Seaboard Airline R. Co. v. Patrick, 10 Ala. App. 341, 65 So. 437. If plaintiff on March 8, 1946 could have paid back the $1000 and had the attachment dismissed without loss or expense to himself, and if he thereafter resisted the suit for the sole purpose of magnifying his injuries, he should not have been awarded any compensatory or actual damages. This too, should have been submitted to the jury. 33 A.L.R. 1479; Griffin v. Oklahoma Natural Gas Corp., 132 Kan. 843, 297 P. 662, 81 A.L.R. 282; Seaboard Airline R. Co. v. Patrick, supra; Mobile O. R. Co. v. Red Feather Coal Co., 218 Ala. 582, 119 So. 606.
Scruggs Scruggs, of Guntersville, for appellee.
An alleged error is waived where the same is not insisted upon in appellant's brief. Supreme Court Rule 10, Code 1940, Tit. 7, p. 1008; Keeton v. Northern Ala. R. Co., 222 Ala. 224, 132 So. 35; Harper v. Raisin Fert. Co., 148 Ala. 360, 42 So. 550. In order for advice of counsel to be a good plea it is necessary that the attorney be learned in the law in the State of the forum. Murphy v. Larson, 77 Ill. 172. A creditor is liable for vindictive damages for malicious attachment even though such attachment was advised by an attorney if the creditor or client had actual knowledge of the facts relied on as ground for attachment, if such facts were insufficient, and there was, in truth, no ground for attachment. City Nat. Bank v. Jeffries, 73 Ala. 183. The exception reserved to the trial court's action in stating that for the advice of counsel plea to be good, defendant would have to show that the advice given was by an Alabama lawyer or by an attorney learned in the law of Alabama, was rendered functus officio by the Court's subsequent oral charge and by reading to the jury defendant's charge 32. Kelly v. Hanwick, 228 Ala. 336, 153 So. 269; Sovereign Camp W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837; Alabama Power Co. v. Bruce, 209 Ala. 423, 96 So. 346; Accident Insurance Dept. v. Brooks, 216 Ala. 605, 114 So. 6; Pollak v. Winter, 197 Ala. 173, 72 So. 386. The overruling of a general objection to a question is not sufficient to present for review the court's ruling thereon. Circuit Ct. Rule 33, Code 1940, Tit. 7, p. 1034; McElroy, Law of Evidence in Alabama, p. 175. Where a complaint claims for the time lost in defending an attachment suit it is proper to show that the attachment defendant lost time in connection with the suit or in procuring the discharge of the suit. Birmingham Elect. Co. v. Cleveland, 216 Ala. 455, 113 So. 403; Mobile O. R. Co. v. Barber, 2 Ala. App. 507, 56 So. 858; Birmingham Ry. Light Power Co. v. Girod, 164 Ala. 10, 51 So. 242. Loss of credit and business are natural consequences of an attachment sued out on the ground of fraud, and are properly averred as special damages in a complaint for wrongful suing out such attachment. Vandiver Co. v. Waller, 143 Ala. 411, 39 So. 136. The fact that Hooker did not know of any inquiries by the Memphis Bank prior to the attachment is a negative fact, provable in no other way, and such negative facts are admissible. Reichert v. Jerome H. Sheip, Inc., 212 Ala. 300, 102 So. 440; Burch v. Ingham Lumber Co., 212 Ala. 204, 102 So. 19; Warten Cotton Co. v. McGuire, 206 Ala. 469, 91 So. 308. An objection comes too late when the witness has already answered the question. McElroy, Law of Evidence in Alabama, p. 174. In an action for maliciously suing an attachment, it is competent for the plaintiff to testify as to the effect of the suit on his credit and the state of his credit thereafter. Bradford v. Lawrence, 208 Ala. 248, 94 So. 103. The correct basis for damages where corporate stock is involved is the market value thereof. Mutual Loan Soc. v. Stowe, 15 Ala. App. 293, 73 So. 202; McCormick, Law of Damages, p. 165. Remarks by the Court to the attorneys in expressing a ruling are not grounds for an objection, even though made in the presence of the jury. Zell v. Umphrey, 250 Ala. 107, 34 So.2d 472; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546; Western Union Tel. Co. v. Howington, 198 Ala. 311, 73 So. 550. In determining whether or not there has been a change of domicile the intention of the person whose domicile is in question is usually the controlling consideration, and the fact that a person lives at a particular place creates a prima facie presumption that such place is his domicile. Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788; 17 Am.Jur. 641. It is proper for a trial court to sustain an objection to a question when the question, in truth, contains more than one inquiry. McElroy, Law of Evidence in Alabama, p. 172. A witness should be asked to state the transaction, and not his conclusion. King v. Dearing-Orman Mercantile Co., 17 Ala. App. 143, 82 So. 627; Long v. Myers, 202 Ala. 238, 80 So. 76. If a witness makes an irresponsive answer to a question propounded to him and the answer is legal evidence, the court has the discretion to exclude the answer . . . but is not compelled to exclude the answer. McElroy, Law of Alabama, p. 40; Mobile Light R. Co. v. Davis, 1 Ala. App. 338, 55 So. 1020; Lowman v. State, 161 Ala. 47, 50 So. 43; Crymes v. White, 37 Ala. 549.
The following is the count upon which the case was tried.
"Count 9
"The Plaintiff claims of the defendant the sum of $2,000.00 as damages for the breach of the condition of an attachment bond executed by Union Planters National Bank Trust Company, of Memphis, Tennessee, as Plaintiff and the defendant, American Surety Company of New York, as surety, a copy of which is attached hereto and marked Exhibit "A", and made a part of this complaint the same as if copied herein verbatum, which said bond, together with an affidavit on the reverse side thereof executed by M.F. Lusk, who was attorney for said bank and trust company, which affidavit was false, all in the cause of Union Planters National Bank Trust Company, a corporation, of Memphis, Tennessee, as Plaintiff, against A. Gentry Hooker, as defendant, were used by said bank with knowledge of the defendant at the time, or its duly authorized agent in the premises, that said attachment bond would be so used to procure an attachment writ in said cause which was obtained by virtue of said bond and was issued out of the Circuit Court of Marshall County, Alabama, at Guntersville, directed to any Sheriff of the State of Alabama to attach so much of the estate of said defendant, Hooker, in said cause as would be of value to satisfy an indebtedness claimed of $1,000.00 and costs according to the complaint, which was levied by the Sheriff of Marshall County by garnishment on the First National Bank of Guntersville and $2,005.00 of Plaintiff's money was tied up which said bank refused to release until said suit had been terminated. And the Plaintiff avers that at the time of the execution of said bond and of the issuance of said attachment writ that the Plaintiff bank in said cause had no legal grounds upon which to base such attachment and had no probable cause for believing that there were such grounds existing at that time and said attachment was wrongfully and vexatiously sued out and that said Plaintiff in said suit did fail to prosecute said suit to effect. Plaintiff further avers that as a natural and proximate consequence of the wrongful suing out of said attachment, coupled with the issuance and levy of said attachment writ, this Plaintiff has suffered damages in this, to-wit: in his business, his credit was impaired, his reputation injured, that he lost a large period of time, to-wit: 18 days from his business and incurred large expense in defending said attachment suit in the sum of, to-wit: $750.00, including his attorney's fees paid by him in the defense of said wrongful attachment, that he has suffered mental pain and anguish and injury to his feelings, all to his damages aforesaid, which on demand this Defendant has refused to pay, hence this suit."
The following charges were refused to defendant:
"10. Gentlemen of the Jury, I charge you that if you are reasonably satisfied from all the evidence that Mr. Hooker could have paid the Bank $1000 and had the attachment dismissed at the Bank's expense, before he himself had incurred any liability, expense or loss, and that he deliberately refused to take advantage of that opportunity, then he is not entitled to a verdict for actual damages, regardless of whether the attachment was wrongful or even malicious."
"20. Gentlemen of the Jury, if you are reasonably satisfied from all the evidence that when Mr. Hooker learned of the attachment being levied, he formed the purpose of bringing a suit on the bond to make the bank pay him damages, and if you are further reasonably satisfied that his activities thereafter in resisting the attachment suit were for the sole purpose of magnifying his injury, and that he could have paid $1000 and had the attachment dismissed on March 9, 1946 at the Bank's expense without any injury, loss or expense to himself, then he will not be entitled to any compensatory damages."
This is a suit by Amzi Gentry Hooker against The American Surety Company of New York.
In the court below the issues were formed by Count 9 of the complaint, the plea of the general issue, and a special plea of advice of counsel.
The trial resulted in a judgment for the plaintiff.
The reporter will set out Count 9 of the complaint.
There are ninety-seven assignments of error.
In approaching this review we will adhere to these rules:
Assignments of error which are not stressed in appellant's brief will not be considered. Supreme Court, Rule 10, Code 1940, Title 7 Appendix; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974; Arrick v. Fanning, 35 Ala. App. 409, 47 So.2d 708.
Where in appellant's brief assignments of error are argued in groups, if any one of said assignments is without merit, a review of the others will be pretermitted. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305.
We will make no further reference to those assignments which are based on the rulings of the court to which appellant's attorney failed to except. Calvert v. J.M. Steverson Sons Lumber Co., 244 Ala. 206, 12 So.2d 365; Broglan v. Owen, 34 Ala. App. 480, 41 So.2d 434.
The answers to some of the questions to which objections were interposed were not harmful to appellant. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Kornegay v. State, 33 Ala. App. 338, 33 So.2d 405.
This observation will serve to illustrate our conclusion as to the assignments which are predicated on rulings incident to these doctrines.
In a few instances counsel for appellant did not interpose any objection to the question until after the answer thereto. Assignments predicated on rulings relating to these queries will not be reviewed. Jones v. Daniel, 34 Ala. App. 490, 41 So.2d 627; Kelley v. State, 32 Ala. App. 408, 26 So.2d 633.
Assignments 7 and 8
At the beginning of the trial proceedings this occurred:
"At a point in the rebuttal statement of the case to the jury by Mr. Scruggs:
"Mr. Scruggs: In answer to that, gentlemen of the jury, we say that if they made any investigation whatever it was a very scanty investigation.
"Mr. Lusk: We object to anything about an investigation.
"Mr. Scruggs: No. He has brought her in here now.
"Mr. Lusk: We haven't said anything about an investigation.
"Mr. Scruggs: Yes, yes, sir. Here is what he said —
"The Court: This inquiry goes through my mind here: Does it not have to be a firm of lawyers learned in the law of Alabama. The plea, I believe says, —
"Mr. Lusk: We don't put that in.
"The Court: They must be learned in the law of Alabama because a man in Honolulu or New York would not know whether —
"Mr. Lusk: I believe I will take an exception to that.
"The Court: I know, but your plea says it was submitted to lawyers, a reputable firm of lawyers. I think it has to be lawyers learned in the law of Alabama because a man in Memphis, Tennessee, or San Francisco wouldn't know whether —. I am not ruling, I am just giving you my thoughts.
"Mr. Lusk: That statement was made in the presence of the jury.
"The Court: We will adjourn and find out what the law is if there is any question of that.
"Mr. Lusk: We move for a mistrial in view of that statement made before the jury.
"The Court: Overrule. I don't know what the law is. I think I know what the law is but I want to find out.
"Mr. Lusk: With all due respect to the Court I believe that inquiry comes to (sic) late after the jury has been drawn, sworn and we have entered into the statement of the case. I consider the statement highly prejudicial to the defendant.
"The Court: I overrule your motion.
"Mr. Lusk: We except.
"The Court: That is my idea of what I think the law is. If you have anything to the contrary I would like to see it.
"Mr. Lusk: That is the first time that proposition has been broached to me.
"The Court: You have a lot of law in a law suit. My understanding is it must be a reputable lawyer of this state. A man learned in the law of this state. If you have any case to the contrary or either way I would like to see it.
"Mr. Lusk: I think it is highly prejudicial to raise that point and make that statement in the presence of the jury at this stage of the trial.
"The Court: I am going to rule whichever way I find the law is. They can't be prejudiced because I am going to clear it up and I want you to help me clear it up if you have any authorities."
Later in the colloquy the trial judge stated:
"I am going to try to do it right. If I find the law one way I am going to rule it just the way I find it. I am telling you now if you don't show me a case to the contrary it must be a lawyer in Alabama that advised this suit."
We have not attempted to set out all that was said by the attorneys and the judge, but an intelligent and fair review can be predicated on what we have delineated.
The evidence for the defendant discloses that members of a Memphis, Tennessee law firm were consulted about the matter.
Apparently the trial judge abandoned his views as expressed in the above quotations. In any event, in his oral charge he did not confine the advice of counsel doctrine to advice from only Alabama lawyers. At the request of the defendant he gave this written instruction:
"Gentlemen of the Jury, if you are reasonable (sic) satisfied that before the suing out of the attachment the Memphis Bank sought advice of reputable attorneys and made to them a full and fair statement of all the facts within its knowledge, or which be (sic) reasonable effors (sic) it could have obtained in reference to the grounds of attachment, and that said attorneys advised the Bank that it had probable cause for the attachment, and that the Bank in good faith acted on said advice, then as a matter of law this would be a complete defense to this suit and you cannot find a verdict against defendant."
It is to be noted that the incident of concern came at the beginning of a three-day trial. It was a colloquy between counsel and the court.
We do not find merit in appellant's insistence that: "The damage to defendant was never repaired." Therefore reversible error will not be predicated on the action of the court in denying the motion for a mistrial. Kelly v. Hanwick, 228 Ala. 336, 153 So. 269; Sovereign Camp, W.O.W. v. Sirten, 234 Ala. 421, 175 So. 539; Greene v. Tims, 16 Ala. 541; Phillips v. Beene, 16 Ala. 720; Pollak v. Winter, 197 Ala. 173, 72 So. 386; Western Union Tel. Co. v. Howington, 198 Ala. 311, 73 So. 550; Accident Ins. Dept. etc. v. Brooks, 216 Ala. 605, 114 So. 6.
Assignments 10 and 43
Counsel for appellee asked his client how many days he lost from his work in and about procuring the discharge of the attachment. Over objections the witness answered: "Eighteen."
This element of damage was claimed in the complaint. Only general grounds were interposed to the question. Johnston v. Isley, 240 Ala. 217, 198 So. 348; Burgin v. Stewart, 216 Ala. 663, 114 So. 182; Head v. State, 35 Ala. App. 71, 44 So.2d 441.
Assignment 15
Appellee was allowed to answer that after the levy of attachment it was necessary for him to incorporate his business at Guntersville, Alabama and transfer all his property to the corporation before he could borrow any money.
The insistence is made that the question called for an unauthorized conclusion of the witness.
We think that this was a statement of a collective fact. The subsidiary circumstances were subject to inquiry by the objector or cross-examination. Shafer Co. v. Hausman, 139 Ala. 237, 35 So. 691; Torrey v. Kraus, 149 Ala. 200, 43 So. 184; Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264; Sloss-Sheffield Steel Iron Co. v. Underwood, 204 Ala. 286, 85 So. 441; Street v. Browning, 205 Ala. 110, 87 So. 527; Somerall v. Citizens' Bank, 211 Ala. 630, 101 So. 429; Meador-Pasley Co. v. Owens, 222 Ala. 392, 133 So. 35; Pollard v. Rogers, 234 Ala. 92, 173 So. 881.
It should be noted also that the appellee gave evidence relating to the requirement of the bank in the matter of credit arrangements. Haas Bros. v. Craft, 9 Ala. App. 404, 64 So. 163; Tenn. Valley Sand Gravel Co. v. Pilling, 35 Ala. App. 237, 47 So.2d 236.
Assignment 16
Over appellant's objections the appellee was allowed to answer this ques- in the negative: "I will get you to state whether or not you know of any inquiry prior to the suing out of the attachment writ and its levy that the plaintiff in that suit or its agent or attorney ever made with reference to you or your property."
Objection to this question could have been sustained without error. It related to a matter of conjecture or surmise on the part of the witness, and the query does not call for a reply that could give rise to the dignity of factual information. Xenia Bank v. Stewart, 114 U.S. 224, 5 S.Ct. 845, 29 L.Ed. 101.
The fact that the witness did answer the question in the negative added nothing to the inquiry and the appellant could not have been harmed by this reply. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
Assignments 18 and 20
In brief of appellant's attorney we are referred to record page 133 for assignment numbered 18. We fail to find any basis for this assignment on this page. Meador-Pasley Co. v. Owens, supra.
Assignment 19
There is no merit in this assignment. It relates to a statement by the trial judge illustrative of the test of market value.
It is not made clear by the record whether the exception was taken to the ruling of the court in sustaining an objection or to the judge's statement. In any event, all the judge said was: "A man might have a diamond ring worth $100.00, but because it was his mother's he wouldn't sell it for $2000.00."
Assignments 21 and 29
This question was propounded to the appellee by his attorney: "When you got to Guntersville what did you do with reference to a home or place to live, if anything?" He replied: "I first established a residence at the Glover Hotel."
There were no objections interposed to the question, however counsel moved to "strike" the answer.
The word "residence" means "act or fact of abiding or dwelling in a place for some time; act of making one's home in a place." Webster's New International Dictionary.
We think, therefore, that the answer was responsive and the court was not in error in denying the motion to "strike." Coats v. State, 253 Ala. 290, 45 So.2d 35.
Assignment 31
Appellee was allowed, over general objections, to state that he told some of his club members at a farewell party at Memphis that he was going to Guntersville to establish his residence.
A party's declarations, made at the time of changing his residence, are admissible as part of the res gestae on the question of domicile. Griffin v. Wall, 32 Ala. 149; Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788; Mitchell v. State, 114 Ala. 1, 22 So. 71; 17 Am.Jur., Domicile, Sec. 88, p. 641.
Assignments 34 and 35
The court sustained objections to this question which was addressed to the cashier of the Citizens Bank of Guntersville:
"Now, I will ask you if at any time that Mr. Hooker has done business with your bank either personally or while he was doing business with your bank for the Milling Company, if you at any time required of him any security or extra protection to the bank because of your knowledge of an attachment suit?"
This question sought information on two different matters, one relating to the individual and the other to the milling company. The latter reference was without materiality. So we must apply the rule which provides that it is not reversible error for the court to sustain an objection to a question which calls for both material and immaterial information. Beall Bros. v. Johnstone Hammond, 140 Ala. 339, 37 So. 297; Lynn v. State, 250 Ala. 384, 34 So.2d 602; Shewbart v. State, 33 Ala. App. 195, 32 So.2d 241.
Assignment 37
Appellant addressed the following question to the president of the First National Bank of Guntersville:
"I will ask you if at any time after March 8 and while Mr. Hooker had any connection as a depositor or borrower with your bank if you at any time denied him a loan or the extension of a loan or the increase of a loan or any of the facilities of the bank, stating to him at the time that it was because the attachment had been levied against that account?"
The court sustained appellee's objection to the query.
Just immediately following, with the aid of the appellee's bank loan record, the witness testified concerning various loan transactions with appellee subsequent to March 8, 1946. The president of the bank finally stated: "I don't recall that he ever applied for a loan which was turned down."
It is evincingly clear that the evidence which followed the quoted question afforded full information on the subject to which the inquiry related. Rosenbush Feed Co. v. Garrison, 251 Ala. 245, 37 So.2d 106; Stephens v. State, 252 Ala. 183, 40 So.2d 90.
Assignment 45
The court overruled appellant's motion to exclude the entire answer to an interrogatory.
In brief counsel points out an excerpt from the answer which he insists is incompetent. The motion went to the exclusion of the reply as a whole. Since part is legal, the court will not be put in error for overruling a motion to exclude the answer in its entirety. Jackson v. State, 31 Ala. App. 212, 14 So.2d 593; Southern R. Co. v. Hardin, 1 Ala. App. 277, 55 So. 270.
Assignment 63
An officer of the Union Planters National Bank Trust Company of Memphis, Tennessee testified with reference to the error in appellee's account with his bank. The witness went into detail explaining how and when it occurred and the efforts that were made to locate the appellee after the error was discovered.
In response to one question the witness included in his reply: "The error was discovered about March 1st." On motion of appellee the court struck this excerpt from the answer. It is likely that the court entertained the view that the information may have been based on hearsay.
In any event it is made clear by the evidence that the error was discovered by someone connected with the bank and soon thereafter the attachment was sued out. We do not see how the absence of proof as to the day of the discovery could have injured the substantial rights of the appellant. Supreme Court Rule 45.
Assignments 80 and 87
Written charges 10 and 20 refused to the defendant each lay too much stress and emphasis on only a part of the evidence. Birmingham Electric Co. v. Woodward, 33 Ala. App. 526, 35 So.2d 369; Aplin v. Dean, 231 Ala. 320, 164 So. 737; Callaway v. Adams, 252 Ala. 136, 40 So.2d 73.
The remaining assignments of error which are properly presented for our review relate to exceptions to a portion of the court's oral charge and objections to statements of appellee's counsel in his argument to the jury.
The court gave full instruction in his oral charge on the doctrine of malice and probable cause. Among the given charges, which the judge gave for the appellant, eleven dealt with these doctrines.
Under these circumstances the excerpt to which exceptions were taken should not form a basis for error. Western Union Tel. Co. v. Snell, 3 Ala. App. 263, 56 So. 854; Casino Restaurant v. McWhorter, 35 Ala. App. 332, 46 So.2d 582; Pryor v. Limestone County, 230 Ala. 295, 160 So. 700.
Counsel did not exceed his privilege to emphasize the evidence and fair inferences therefrom in his argument to the jury.
In this connection it is insisted that appellee's counsel misapplied the law of the case in his argument. The court accurately stated the law in his oral charge and by given written instructions. It was the duty of the jury to look to this source for guidance. Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23.
We do not find any reversible error in this record. The judgment below is, therefore, ordered affirmed.
Affirmed.
On Rehearing
Out of deference to the earnest insistence of appellant's attorney, we will extend our original opinion and give further consideration to some of the assignments of error.
Assignments 18 and 20 are grouped in argument in brief.
None of the assignments points out the page in the record where the question appears. We have to look to brief of counsel for this information.
Under a heading in brief is: "Assignments No's 18, 20 Record pp. 133, 159"
The question attempted to be raised by assignment number 18 does not appear on either page 133 or 159 of the record. We pretermit a review of assignment number 20.
Assignment 65
This assignment is predicated on the action of the court in overruling appellant's motion for a mistrial. No exceptions were reserved to the ruling of the court.
Assignment 66
Appellant's counsel interposed this objection to argument of appellee's attorney: "I object to that argument. The bank is not a party to this suit and the statement the bank didn't care how they debauched his character."
This is such a fragmentary and indefinite reference it can hardly be said that our review is invited. However, on the basis of the proof, we are not authorized to hold that counsel exceeded his legal right to make this statement.
Assignment 67
The objection here is in this form:
"Mr. Lusk: We object to that argument that his credit has been injured."
We assume that reference is here made to the plaintiff, although this is not made certain by the objection. In any event, as applied to the plaintiff, the fair inference from the evidence permitted the appellee's counsel to make the statement.
Assignment 68
The objection appears in this form:
"Mr. Lusk: If the Court please, I object to that as a conclusion that nothing is undisputed in this case."
If counsel was referring to the evidence in its entirety, perhaps this was an extravagant assertion.
It has been held by our courts that when an attorney makes a statement in argument of a prejudicial nature, as a fact, when the proof does not sustain the statement, the appellate courts will charge reversible error, provided in the opinion of the court the opposing party was injured thereby.
The jury, of course, heard the testimony. It was in a position to evaluate the accuracy of such an assertion.
We do not think that injury to the substantial rights of the appellant appears. Supreme Court Rule 45.
Assignment 69
This assignment is predicated on this objection:
"Mr. Lusk: If the Court please, I object to counsellor instructing the Jury that the law in Alabama is you cannot sue another non-resident in Alabama in attachment without making affidavit and that the nonresident of Alabama cannot be sued unless there is not sufficient property in the state of the non-resident to be sued.
"The Court: Overruled.
"Mr. Lusk: Except."
We will not pass on the accuracy of this statement as a legal proposition. It is somewhat involved. The law in this respect was correctly given by the trial judge in his oral charge. The jury must look to the court and not the attorneys for the law of the case. Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23.
Assignments 70 and 71
These assignments are grouped in argument. Appellant's attorney did not reserve an exception to the ruling of the court incident to the insistence upon which assignment number 70 is predicated. We will pretermit a review of assignment number 71.
Assignment 72
"The Court erred in allowing plaintiff's attorney to argue to the jury that it was undisputed in the evidence that plaintiff had property in Tennessee worth at least $8000."
We do not find that this assignment is stressed in brief of counsel. In any event, we think that our treatment of assignment number 68, supra, is applicable here.
Assignments 74 and 75
Assignment number 74 is based on this:
"Mr. Lusk: The first point is I strenuously object to Your Honor's reading Section 851, Title 7 of the Code to the Jury in discussing that section with the Jury."
It has been held that an "objection" to the oral charge is not equivalent to an "exception." Roberson v. State, 25 Ala. App. 270, 144 So. 371; Garrett v. State, 33 Ala. App. 168, 31 So.2d 151; Buffalow v. State, 34 Ala. App. 418, 41 So.2d 417; Horn v. State, 23 Ala. App. 273, 124 So. 125.
Be this as it may, assuming but not deciding that the statute had no application, the right of the defendant could not have been substantially injured by the mere fact that the court read the statute. The section relates to the right of a non-resident of this State to sue out an attachment against a non-resident.
The application for rehearing is over-ruled.