Opinion
7 Div. 509.
October 30, 1924.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
James A. Embry, of Ashville, and J. M. Miller, of Gadsden, for appellant.
Testimony by plaintiff as to the value of his services was improperly admitted; likewise as to evidence by plaintiff's wife that she was being choked. 5 Mayfield's Dig. 397. Defendant's requested charge should have been given. 3 Mayfield's Dig. 388, 433; Lehman v. McGueen, 65 Ala. 570; McWilliams v. Phillips, 71 Ala. 80; Shulman v. Brantley, 50 Ala. 81; Garrett v. Garrett's Adm'r, 64 Ala. 263.
W. J. Boykin, of Gadsden, for appellee.
There was no error in refusal of charges requested by defendant. Marbury Lbr. Co. v. Heinege, 204 Ala. 241, 85 So. 453; O'Brien v. B. R., L. P. Co., 197 Ala. 97, 72 So. 343; B. R., L. P. Co. v. Milbrat, 201 Ala. 368, 78 So. 224; Herring v. L. N., 203 Ala. 136, 82 So. 166; A. G. S. v. Flinn, 199 Ala. 177, 74 So. 246; Shipp v. Ferguson, 202 Ala. 9, 79 So. 307; Kellar v. Jones Weeden, 196 Ala. 417, 72 So. 89; B. R., L. P. Co. v. Kyser, 203 Ala. 121, 82 So. 151.
Corbin sued Hollingsworth on account of several incised wounds which the former had received in a mêlée between them and their respective families. The trouble started between the ladies of the two families, one of whom, on some occasion of more or less importance, called the other a liar. Hollingsworth defended on the ground that some one else, not he, had done the cutting. Corbin had judgment, and Hollingsworth appeals.
Plaintiff is a farmer, and at the time of the difficulty was planting cotton. His wounds put him out of business for about 30 days. As going to show in part the measure of his damages plaintiff's attorney was allowed to ask plaintiff, testifying as a witness, "What were your services reasonably worth per day at that time in your crop?" There was objection to the question "as incompetent, irrelevant, immaterial, and illegal." The objection now urged is that it was not shown that the witness knew anything of the value about which he was allowed to give his opinion. Indeed, the witness had just testified that he had no idea what his services on his farm in that neighborhood at that time were worth. Obviously a witness must have some means of knowledge before he is qualified to express an opinion as to value. Jones on Ev. (2d Ed.) § 363. But the qualification and knowledge of the witness, as a preliminary at least, was a question for the court. The record — the substance of which has been stated — shows an objection to the question, calling for an obviously relevant and material answer, not an objection to the competency of the witness. We are unable, therefore, to affirm reversible error of the court's ruling. Wilson v. Godkin, 142 Mich. 631, 105 N.W. 1121.
The evidence disclosed the fact that at the time when plaintiff was being cut Rosella Corbin — a sister-in-law of plaintiff, but consorting with his adversaries — had Bertha Corbin, plaintiff's wife, down. Plaintiff's wife, as a witness, was allowed to say: "She choked me so that I could not speak." This was the statement of a collective fact, and was admitted without error. 22 C. J. 531, whereunder (page 532) many Alabama cases on the subject are cited.
There was no error in refusing the charges requested by defendant. Charges 2, 3, and 4 were elliptical, obscure, and confusing. Charges 5 and 6 were misconceived for the reason that, even though defendant had no hand in the actual cutting, he may have been answerable therefor as having aided and abetted the same, or, in any event, that he did assault and beat plaintiff without more, that is, without cutting him.
No reversible error having appeared, the judgment of the trial court must be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.