Opinion
6 Div. 117.
March 1, 1932. Rehearing Denied June 7, 1932.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Action in assumpsit by Belle Whiteside against Thomas Vaughn and the Vaughn Realty Company. From a judgment for plaintiff, defendants appeal.
Affirmed.
Certiorari denied by Supreme Court in Thos. H. Vaughn et al. v. Whiteside (6 Div. 193) 225 Ala. 442, 143 So. 471.
The following charge, refused to defendants, is made the basis of assignment 7: "I charge you, gentlemen of the jury, if you believe from the evidence that the plaintiff, Mrs. Whiteside, has sworn falsely to any material fact you may disregard all of her testimony."
Theodore J. Lamar and T. A. Murphree, both of Birmingham, for appellants.
A witness who gives false testimony as to one particular cannot be credited as to any. Grimes v. State, 63 Ala. 166; Moore v. Jones, 13 Ala. 296. Where plaintiff wholly fails to prove the material averments of the complaint to which there is a plea of the general issue, the defendant is entitled to the general affirmative charge. Alexander v. W. O. W., 161 Ala. 561, 49 So. 883; Crutcher v. Memphis, etc., R. Co., 38 Ala. 579; Sweet v. Birmingham R. E. Co., 145 Ala. 667, 39 So. 767.
G. R. Hubbard, of Birmingham, for appellee.
The general affirmative charge should never be given where the evidence is in conflict. Watts v. Metropolitan L. I. Co., 211 Ala. 404, 100 So. 812; Jones v. Bell, 201 Ala. 336, 77 So. 998; Sharp v. Clopton, 218 Ala. 140, 117 So. 647; Cooke v. Embry, 219 Ala. 623, 123 So. 27; Chestang v. Kirk, 218 Ala. 176, 118 So. 330; Shine v. McCarter, 24 Ala. App. 66, 130 So. 162; Protective L. I. Co. v. Swink, 222 Ala. 496, 132 So. 728. The charge made the basis of assignment 7 is bad. A witness must not only testify falsely, but willfully so. Furthermore, the degree of conviction is improperly stated. Tenn. C. I. R. Co. v. Wilhite, 211 Ala. 195, 100 So. 135; Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022.
This appeal is from a judgment in appellee's favor, in her suit against appellants for "money had and received by appellants for the use of plaintiff (appellee)," etc.
There are no questions of law, worthy of mention, involved.
The complicated issues were entirely of fact — and complicated they were. However, it is apparent that the testimony on behalf of appellee was of that character that rendered it proper that the disputed issue, or issues, of fact, raised by it and the testimony on behalf of appellants, be submitted, in the first instance at least, to the jury, for their decision, under the entirely elementary principles of law that were involved — and which were correctly given to the said jury, in charge. There was surely — in fact, appellants counsel do not deny that there was — a "scintilla of evidence" supporting appellee's claim. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.
The action of the trial court in overruling appellants' motion to set aside the verdict of the jury, etc., as for that it was against the weight of the evidence — or for any other reason — we do not find to be assigned for error, and hence is not before us for review. Code 1923, §§ 6088, 6101.
The written requested charge, the refusal of which is made the basis of appellants' assignment of error No. 7, does not state a correct proposition of law. It would have been otherwise had the concluding statement therein been predicated upon the plaintiff having "willfully" sworn falsely, etc. Tennessee Coal, Iron R. R. Co. v. Wilhite, 211 Ala. 195, 100 So. 135.
It would seem but the statement of an axiomatic proposition of law to say that the error, if error there was, in excluding certain evidence, would be cured, where the substance thereof was, subsequently, fully testified to by the same witnesses, i. e., the witnesses from whom it was offered to elicit the testimony (evidence) which was excluded. Alabama Trunk Luggage Co. v. Hauer, 214 Ala. 473, 108 So. 339.
The assignments of error "written upon the transcript," which are the only ones that we can consider, and then, only, when argued and insisted upon (Supreme Court Rule 1, Code 1923, vol. 4, page 880, and citations thereunder), do not, in this case, correspond with those set out in the brief of appellants. This has proved somewhat confusing.
But what we have said above seems to dispose of all those alleged errors assigned and argued in accordance with the rules.
In none of them do we find prejudicial error, and the judgment is affirmed.
Affirmed.
On Rehearing.
Perhaps, out of respect to appellant's able counsel we ought, without reference to their motion filed here, asking leave to make additional assignments of error, and making no ruling, one way or the other, on the merits of said motion, to state that we have reexamined the entire evidence in this case, and are of the opinion that the claimed errors, inadvertently omitted from the assignments of error, upon original submission, were not, in fact, errors of a prejudicial nature. And the motion is denied, for this reason.
So nothing would be gained by allowing them to be now assigned etc.
The verdict of the jury, etc., was well supported by the evidence, and, according to the well-known rule laid down in Cobb v. Malone, etc., 92 Ala. 630, 9 So. 738, we would not be justified in disturbing it.
The application for rehearing is overruled.