Opinion
1 Div. 335.
October 23, 1924.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Stevens, McCorvey, McLeod Goode, of Mobile, for appellants.
In order for plaintiff to recover, she must have shown legal title or right of immediate possession. Turk v. Daniel, 19 Ala. App. 289, 97 So. 125; Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Hodges v. Westmoreland, 209 Ala. 498, 96 So. 573.
F. K. Hale, Jr., of Mobile, for appellee.
Counsel argue the questions raised, but without citing authorities.
The decisive issue of fact in this case was the identity, vel non, of the automobile returned by the defendant to the plaintiff, with the car which she bought from defendant and left with defendant for repairs. All evidence tending to prove or to disprove that identity was relevant, and was admissible if otherwise competent.
The evidence showed without dispute that the car sold by defendant to plaintiff was numbered on the car as follows: Model number, 490-T; manufacturers' serial number, 366,343; motor number, 89770. Plaintiff's contention was that the car returned to her by defendant was one falsely substituted by defendant for her own car, and that the substituted car had no "motor number" on it at all. It was therefore proper for defendant to show that the car received and kept by plaintiff bore the same numbers as those on the original car, not only because such evidence was relevant as tending to show the identity of the cars, but also because it was a direct contradiction of plaintiff's testimony.
The proffered testimony of R. M. Smith, Esq., should therefore have been admitted, and its exclusion was erroneous. The fact that defendant included in the proffer the statement that the witness was demanding possession of the car on behalf of his client, the General Motors Acceptance Corporation, and that plaintiff stated that it was in her barn, and the witness would have to take it if he got it, did not render the proffer bad, since it was competent and proper for defendant to show the circumstances under which he saw and examined the car, and his conversation with plaintiff with respect thereto, tending, as it did, to show an implied admission on her part that she had the original car described in the written contract.
Counsel for plaintiff suggests that the exclusion of this testimony was harmless because the facts were expressly admitted by plaintiff at a later stage of the trial; but an examination of the record shows that there was no admission of the identity of the numbers, but rather a denial of it, expressly so, as to the motor number, the presence of which was denied.
Plaintiff's testimony included a great deal of irrelevant matter, as to which comment is unnecessary, since it may not be offered again.
For the error noted, the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.