| Ala. | Jan 14, 1909
Tliis is an action by tenants against their landlord to recover damages resulting from water leaking or escaping from water pipes in an upper story and flooding plaintiffs’ goods located in the lower story. The complaint counts on negligence on the part of the landlord in the use of defective and unsound pipes. There was judgment by default against the defendant, with a writ of inquiry. On the execution of the writ before the jury, questions were reserved to the rulings of the court on the admissibility of evidence and to the giving of charges for the defendant. These rulings and charges are by the plaintiffs now assigned as error.
The bill of exceptions contains these recitals: “Counsel for defendants said that this was a very unusual case, the contest upon hearing to assess damages upon a default judgment. Objection to said remark was made by counsel for the plaintiff, and the court was asked to withdraw the same from the jury. Objection was overruled, and exception was duly taken and noted.” Passing by the indefiniteness of the manner in which the plaintiffs seek to present the question by the bill of exceptions, it occurs to the court that the statement, if of a fact, instead of a mere expression of opinion, is founded in truth, and that for this reason the court cannot be put in error on account of the ruling made. Moreover, we fail to see that any injury to the plaintiffs could have resulted from the statement.
The rule for the admeasurement of damages in this cause is the difference between the market value of the goods injured just prior to, and such value just after, the flooding. Witness J. W. Craig qualified himself to give testimony in regard to the value of the goods. He was asked by plaintiffs’ counsel to “state in bulk the reasonable market value of the injured goods prior to their injury.” The testimony sought by the question was competent, material, and relevant. These were the
In not allowing the depositions of Koosa to be taken out by the jury the court committed no error. This was a matter which rested in the discretion of the court.— Smith’s Case, 142 Ala. 14" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/smith-v-state-6520591?utm_source=webapp" opinion_id="6520591">142 Ala. 14, 27, 39 South. 329.
In refusing to permit Exhibit 1 to the deposition of Koosa. to be taken by the jury as a memorandum the court committed reversible error. — Foster v. Smith, 104 Ala. 248" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/foster-v-smith-6515803?utm_source=webapp" opinion_id="6515803">104 Ala. 248, 252, 16 South. 61.
Koosa’s testimony not being set out in the bill of exceptions, this court cannot say that the trial court erred in giving charge 1 requested by the defendant. Furthermore, the charge is, at most, only misleading in its first sentence; and this infirmity could have been remedied by an explainatory charge.
Charge 2 and 3 are unobjectionable, and were properly given.
For the errors pointed out, the judgment of the trial court in respect to the assessment of damages is reversed, and the cause is remanded for another trial to determine the plaintiffs’ damages.
Tteversed and remanded.