Opinion
5 Div. 337.
February 20, 1941. Rehearing Denied April 3, 1941. Further Rehearing Denied May 22, 1941.
Appeal from Circuit Court, Chilton County; Arthur Glover, Judge.
Gerald Gerald and J. B. Atkinson, all of Clanton, for appellants.
An action ex delicto may not be joined with one ex contractu in the same suit unless it appears that they arose out of the same transaction and relate to the same subject matter. Cox v. Awtry, 211 Ala. 356, 100 So. 337; Findley v. Hardwick, 230 Ala. 197, 160 So. 336. In action for money had and received against two defendants, where evidence tends to show cause of action against one only, the defendant as to whom the cause of action is not shown is entitled to the affirmative charge. Cox v. Autry, supra; Johnson v. Collier, 161 Ala. 204, 49 So. 761. In action, ex contractu or ex delicto, based on contractual relationship, filed jointly against two or more defendants, there is a fatal variance if proof shows a right to recover against only one defendant, and in such case all defendants are entitled to the affirmative charge. Cobb v. Keith, 110 Ala. 614, 18 So. 325; Sloss-S. S. I. Co. v. Wilkes, 231 Ala. 511, 165 So. 764, 109 A.L.R. 385, Redmon Co. v. L. N. R. Co., 154 Ala. 311, 45 So. 649; Central of Georgia R. Co. v. Camp Hill Trading Co., 208 Ala. 315, 94 So. 350; Northern Ala. R. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Dean v. E. T. V. G. Ry. Co., 98 Ala. 586, 13 So. 489. Where complaint contains count ex contractu and count ex delicto and trial court fails to comply with statute and fails to charge jury in reference to such counts and jury fails to specify under which count they find their verdict, no basis for judgment thereon by the court exists, and a general judgment should be set aside on motion. Code 1923, §§ 9467, 9468. In determining damage to automobile the difference between value before and after injury should be proved, and it is error to admit evidence as to cost of repairing one isolated item of damage when it appears without dispute there were others. B. R. L. P. Co. v. Sprague, 196 Ala. 148, 72 So. 96; Thompson v. Pollock D. G. Co., 18 Ala. App. 326, 92 So. 22; Plylar v. Jones, 207 Ala. 372, 92 So. 445; Hill Gro. Co. v. Caldwell, 211 Ala. 34, 99 So. 354; Mobile L. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837; Johns Und. Co. v. Hess Co., 213 Ala. 78, 104 So. 250; Webb v. O'Kelly, 213 Ala. 214, 104 So. 505; Conway v. Robinson, 216 Ala. 495, 113 So. 531; Hammond v. Acker, 219 Ala. 291, 122 So. 173; Blackmon v. Gilmer, 221 Ala. 554, 130 So. 192; Burns v. Bythwood, 28 Ala. App. 335, 184 So. 346.
Reynolds Reynolds, of Clanton, for appellee.
Judgment will not be reversed for erroneously overruling demurrer to complaint unless such action is prejudicial to rights of appellant; and the burden is upon appellant to show prejudicial error. Sup.Ct. Rule 45; Sovereign Camp, W.O.W., v. Ward, 201 Ala. 446, 78 So. 824; City of Birmingham v. Lynch, 29 Ala. App. 242, 197 So. 46. Where complaint contains count in trover and for money had and received against two defendants, the evidence disclosing but one transaction, and general verdict is returned even though evidence does not sustain count for money had and received as to one defendant upon appeal, the verdict will be referred to the trover count sustained by the evidence. Elliott v. McCraney, 26 Ala. App. 565, 163 So. 814; City of Birmingham v. Lynch, supra. Joint tort-feasors are generally liable jointly and severally and if sued jointly a recovery may be had against one or more, though plaintiff fails as to some. Lang v. Gunn, 23 Ala. App. 574, 129 So. 318; Griffin v. Bozeman, 234 Ala. 136, 173 So. 857; Pilcher v. Smith, 4 Ala. App. 444, 58 So. 672; Leftkovitz v. Lester, 11 Ala. App. 504, 66 So. 894; Powell v. Thompson, 80 Ala. 51. The trial court cannot be put in error for failing to instruct as to counts ex contractu and ex delicto as provided by Code, § 9468, nor error claimed as for failure of jury to specify under which count they find, unless the ruling of the trial court was invoked by requested charge or appropriate motion. So. B. L. Asso. v. Wales, 224 Ala. 40, 138 So. 556; So. B. L. Asso. v. Davis, 223 Ala. 222, 135 So. 164. Generally the measure of damages in breach of warranty is the difference between value of the article actually furnished and the value it would have had it been as warranted, and this may be shown by the reasonable cost of putting the article in the condition called for by the warranty. Columbia Motor Co. v. Williams, 209 Ala. 640, 96 So. 900; Florence Wagon Wks v. Trinidad Asph. Mfg. Co., 145 Ala. 677, 40 So. 49; Cleveland Laundry Mch. Co. v. So. Steam Carpet Cleaning Co., 204 Ala. 297, 85 So. 535; Hodge v. Turfts, 115 Ala. 366, 22 So. 422.
The plaintiff, appellee here, sued the defendants, appellants, joining in the complaint counts ex contractu and counts ex delicto, without averring that said counts related to the same subject matter, or that the cause of action arose out of the same transaction. The defendants' demurrer pointed out this supposed defect relying on Cox v. Awtry, 211 Ala. 356, 100 So. 337, as supporting the demurrer. The holding in that case on this point was overruled by First Nat. Bank of Gadsden v. Morgan, 213 Ala. 125, 104 So. 403. The demurrer was properly overruled.
The appellants insist that there was no evidence warranting a finding by the jury on the count for money had and received as against the defendant Jim Barnett Motors, Inc., and that the court erred in refusing charges 11 and 15 relating to said count. Said charges are embodied in the record as "refused written charges for the defendants," and the case was submitted by appellants in the Court of Appeals without an order granting leave to sever in the assignments of error. In these circumstances only errors affecting the rights of both appellants are available to reverse. Minor v. Thomasson, 236 Ala. 247, 182 So. 16; F. Becker Asphaltum Roofing Co. et al. v. Murphy, 224 Ala. 655, 141 So. 630; Joiner v. State, 232 Ala. 522, 168 So. 885; Fields et al. v. Southeastern Fuel Co., 233 Ala. 437, 172 So. 257; Foster v. Williamson, 236 Ala. 672, 185 So. 168.
There was evidence justifying a finding by the jury as to the fifth count for money had and received against Bentley and the evidence abundantly supports the trover count against both defendants.
The court failed to instruct the jury "to specify under which count they find their verdict." There was no request in writing or otherwise for the jury to so specify, nor was there any exception reserved to the oral charge of the court, raising such question. It was raised for the first time in the motion for new trial.
We are of opinion that the question should have been raised in advance of the verdict. The failure of the verdict to so specify could only affect the rights of the defendants, and it was not permissible for them to sit silent until the verdict was rendered, and then object. Southern Building Loan Ass'n v. Davis, 223 Ala. 222, 135 So. 164; Southern Building Loan Ass'n v. Wales, 24 Ala. App. 542, 138 So. 553.
The suit was for the conversion of both the Dodge and the Plymouth, and defendants' special pleas, pleaded in short by consent, breach of warranty, deceit in the sale of the Dodge, set-off and recoupment, presented very broad issues concerning the condition of the Dodge the character of the defects, and its value when sold by Smith to Bentley. In the light of these issues we are not of opinion that it was reversible error to overrule the defendants' objection to the question put to the witness, Crews, eliciting testimony as to what it would cost to buy and install a new driver shaft in the Dodge, which the evidence showed was defective and out of line.
Nor did the court commit reversible error in not excluding the answer, that it would cost $15.
The foregoing disposes of all questions argued in brief. No reversible errors appearing the judgment will be affirmed.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.
On Rehearing.
It is conceded that the foregoing opinion mistakenly treated charge 11 as applicable to count five — the count for money had and received. That charge related to the trover count and there is no contention now that the trial court erred in refusing said charge.
It may be also conceded, as asserted in the application for rehearing, that Bentley bought from plaintiff's intestate and was entitled to a new automobile. Confessedly he was not entitled to take the alleged new automobile and the Plymouth which he traded in as part payment of the purchase price, and trade the two to his codefendant for a new automobile and cash.
The appellants now insist that the court erred in refusing special charge 5 — the affirmative charge as to count 5 — the count for money had and received. They first insist that there is a clear variance between the pleadings and proof, in that while the evidence shows that Bentley received money from the other defendant and the new automobile, there is no evidence showing or tending to show that the Jim Barnett Motors, Inc., had received any money out of the transaction when the suit was brought; that he still had the Plymouth in his possession.
Rule 34 of Circuit Court Practice answers the contention. Code 1923, Vol. 4, p. 906, Code 1940, Tit. 7, Appendix.
They next insist that the evidence is without dispute that the defendants did not receive the same money. The burden was on the plaintiff to show that the defendants received money or its equivalent. Farmers' Bank Trust Co. v. Shut Keihn, 192 Ala. 53, 68 So. 363; Hughes v. Stringfellow, 15 Ala. 324; Huckabee v. May, 14 Ala. 263; 14 Ala.Dig. 584, Money Received 2.
The evidence is without dispute that both defendants received the Plymouth automobile and dealt with or traded the same as money or the equivalent of money.
Application for rehearing overruled.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.