Opinion
6 Div. 368.
April 23, 1925.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Stokely, Scrivner, Dominick Smith and J. M. Gillespy, Jr., all of Birmingham, for appellant.
Declarations of the truck driver, made immediately after, and at the time and place of, the accident, were admissible as of the res gestæ. Standard Oil Co. v. Douglass, 18 Ala. App. 625, 93 So. 286; Travelers' Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470. A. C. G. A. v. Heald, 178 Ala. 636, 59 So. 461. And, if not of the res gestæ, were admissible after predicate to impeach. Bradley v. Lewis, 211 Ala. 264, 100 So. 324; Franklin v. State, 18 Ala. App. 374, 92 So. 526; Speakman v. Vest, 152 Ala. 623, 44 So. 1021. Evidence of value a considerable time before or after the time in question is not admissible, in the absence of evidence that the value remained the same. Burgin v. Marx, 158 Ala. 633, 48 So. 348; Hensley v. Orendorff, 152 Ala. 599, 44 So. 869; Grant v. Hathaway, 118 Mo. App. 604, 96 S.W. 417. Witnesses should not be allowed to state conjectures based on facts not in evidence. L. N. v. Banks, 132 Ala. 471, 31 So. 573.
J. P. Mudd, of Birmingham, for appellee.
Where the purpose of a question is not shown, the trial court will not be put in error for sustaining objection. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. Evidence offered for impeaching purposes should be so limited when offered. Archer v. Sibley, 201 Ala. 495, 78 So. 849; W. U. Tel. Co. v. Favish, 196 Ala. 4, 71 So. 183. A predicate is necessary for impeachment evidence. Tuscaloosa v. Hill, 14 Ala. App. 541, 69 So. 486, Evidence admissible for a particular purpose is not subject to a general objection. Davis v. Morgan County, 209 Ala. 343, 96 So. 473; Hill Gro. Co. v. Caldwell, 211 Ala. 34, 99 So. 354. The trial court has discretion in the admission of evidence of the loss of market value. Mobile L. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837; F. W. Bromberg Co. v. Norton, 208 Ala. 117, 93 So. 837; B. R., L. P. Co. v. Hinton, 157 Ala. 630, 47 So. 576.
The complaint contained counts based on simple negligence and wanton conduct. The trial was without a jury, and resulted in judgment for plaintiff.
The question, "I will ask you, then, did the driver of the truck at the time and place, and immediately after the accident, state to you that he couldn't stop the truck?" was not proper for impeachment, in the absence of a predicate. Lester v. Jacobs (Ala. Sup.) 103 So. 682. And where evidence is admissible for one of two or more purposes, within the issues, and is offered without restriction or limitation to the purpose for which it is admissible, and the objection is general, the ruling thereon will not be reversed. Western U. T. Co. v. Favish, 196 Ala. 4, 71 So. 183; Davis v. Tarver, 65 Ala. 98; Farley v. Bay Shell Road Co., 125 Ala. 184, 27 So. 770; Archer v. Sibley, 201 Ala. 495, 78 So. 849; Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. That is to say, where evidence is admissible for a particular purpose, the court cannot be placed in error for receiving it by a mere general objection to its introduction. Barfield v. Evans, 187 Ala. 579, 65 So. 928. It is the duty of the party objecting to invoke the court's action so that the evidence may be set before the jury with the proper limitations.
Declarations of third persons, to be considered as a part of the res gestæ must be a part of the transaction and under such circumstances as that their spontaneity is assured — "were free from all suspicion of device, premeditation or aforethought." Travelers' Ins. Co. v. Whitman, 202 Ala. 388, 391, 80 So. 470, and authorities; A. C. G. A. Ry. Co. v Heald, 178 Ala. 636, 59 So. 461. The declaration called for was merely narrative of a transaction which was "really and substantially past," and was not competent as res gestæ. Stoudemire v. Davis, 208 Ala. 495, 94 So. 498; B. A. Ry. Co. v. Campbell, 203 Ala. 296, 299, 82 So. 546; Bradley v. Lewis, 211 Ala. 264, 100 So. 324; A. C. G. A. Ry. Co. v. Heald, supra; A. G. S. R. R. Co. v. Hawk, 72 Ala. 112, 117, 118, 47 Am. Rep. 403.
Plaintiff propounded to the witness Brideshaw, over the objection of defendant, the questions: "There is always danger when a crank case is welded in finding it warped after it is welded, is there not, no matter how carefully done?" "It might though?" The respective answers were: "Of course there is a danger of it warping, but if it warped you can tell it before you assemble it. If it don't warp, it wont likely warp afterwards." "I never have had it."
The witness Turrentine had testified on redirect examination that the crank case was welded; that, if a welded job is successful, it will hold up fairly well, but, if not, "may give you trouble"; that it is difficult to tell by looking at it whether it is successful or not; that as to whether a welded job is "likely to hold up as a new job * * * is a gamble"; and that a car with welded crank case will not bring as much on the market in a resale as a car without a welded crank case.
Mr. Brideshaw then qualified as an expert, stated that he saw the truck belonging to plaintiff, testified to the necessary and reasonable repairs and costs thereof, the price of a new crank case, and the nature and office of that part of the truck, explained how that crank case was welded. When the two questions and answers are considered together and with the other evidence, no reversible error intervened in said affirmative and negative answers made by the witness Brideshaw. It is true there was no evidence that the instant crank case, after being welded, was warped — yet the questions tended to show the nature of the damage and depreciation in the market value of the truck. The case of L. N. R. R. Co. v. Banks,
132 Ala. 47, 31 So. 573, which is cited, holding that it was not error to refuse a hypothetical question not based on the particular facts of the case, contained no ascertainment of value based upon opinion evidence. Plaintiff was merely attempting to give the jury the facts that entered into the depreciation of market value. After qualifying as an expert, the witness Turrentine stated the market value of a new truck at Birmingham (Burton Sons Co. v. May [Ala. Sup.] 102 So. 46 ) from which to proceed in the finding and declaration of the market value of the subject-matter of damage in this suit, immediately before and after its damage — it not being rendered worthless by reason of its said damage (Hill Gro. Co. v. Caldwell, 211 Ala. 34, 99 So. 354; Davis, Agent, v. Morgan County, 209 Ala. 343, 96 So. 473). There was no error in permitting the witnesses Hess, Turrentine, and Brideshaw to give opinion evidence of the market value, as was done on the trial. There is no hard and fast rule imposed upon trial courts in the admission of evidence upon which a reasonable and fair judgment of the loss or damages in the market value may be ascertained. Mobile L. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837, 840; Hill Gro. Co. v. Caldwell, 211 Ala. 34, 99 So. 354.
No reversible error resulted in permitting the witness Hess to answer that he knew Twenty-Sixth street and Eighth avenue were busy thoroughfares in the city of Birmingham, and the refusal to exclude the same on grounds that it was not in rebuttal. Defendant's truck driver had given testimony to like effect, and, though the question was not more specific as to the time of the accident, we do not find reversible error as to defendant, whose witness on cross-examination had given, without objection, the specific facts of the place at the time of the collision — that the streets were important thoroughfares, referring, by this, to the volume of traffic thereon.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.