Dеfendant appeals from a jury verdict of $9,500 in favor of plaintiff.
Plaintiff instituted this action by filing a complaint against Liberty Truck Sales, Inc., Liberty Leasing, Inc., and John Purcell, individually and as agent for Liberty Leasing, Inc. The complaint stated claims based on fraud, an odometer disclosure violation, negligent repair, breach of express warranty, breach of implied warranty and strict liability under the Alabama Extended Manufacturer's Liability Doctrine. The claims were grounded in allegations of facts surrounding the purchase by plaintiff of a used truck from the defendants, and dealings subsequent to that рurchase.
The case was tried before a jury in Jefferson County Circuit Court. At the conclusion of the evidence thе plaintiff withdrew his claim based on breach of implied warranty and the court struck the claim based on strict liability. The jury rеturned a verdict of $9,500 based on breach of express warranty against defendant Liberty Truck Sales, Inc. Defendant filеd a motion for new trial or in the alternative for judgment notwithstanding the verdict, or in the alternative for remittitur. The trial court denied the motion on June 29, 1979. Defendant appeals from that denial.
Defendant has raised a number of issues as grоunds for reversal of the trial court's order denying his motion for new trial.
He contends that the trial court erred to revеrsal in sustaining objection to questions asked the plaintiff concerning a prior conviction for attempting to dispose of mortgaged property. The law in Alabama is clear that a witness may be impeached by proving his сonviction of a crime involving moral turpitude. §
Defendant contends that the trial court erred in permitting plaintiff to testify about his attempt to rent a truck during the time the truck рurchased from defendant was being repaired. Defendant's objection was that the questions called for heаrsay testimony. We have carefully considered the portion of the record pointed out by defendant. It aрpears that the trial court sustained defendant's objection to those questions which called for hearsay. The testimony allowed by the court was in response to questions concerning plaintiff's personal knowledge of the availability of rental trucks. We find no error here.
Defendant next argues that the trial court improperly chargеd the jury as to the burden of proof. A party may not charge error in the giving of an erroneous, misleading, incomplеte, or otherwise improper oral charge unless he objects, stating the matter to which he objects and the grounds of his objection. Rule 51, ARCP. Defendant's objection to the court's oral charge was:
Mr. Costello: No sir. We havе some objections. First of all, Your Honor, I think that maybe I missed it, but I think you failed to mention the burden of proof as to eаch and every count.
Although a reading of the trial court's charge shows that the court in fact did not mention the burden оf proof in his instructions concerning each individual count, we do not find this to be error requiring reversal. The trial court сlearly states at the beginning of its charge that the burden is upon the plaintiff to prove his charges or claims against the defendant. We consider that sufficient as an oral charge. If the objection is the failure to charge оn a particular subject, it must be by way of a requested written charge. City ofBirmingham v. Wright,
Defendant's final issue is that the award of damagеs by the jury was excessive and not supported by the evidence. We agree.
The jury expressly found for the plaintiff on his claim for breach of express warranty. There is much discussion in brief as to whether the warranty was a warranty of the general condition of the truck or merely to repair. That discussion is immaterial in light of the law of the case еxpressed in the court's charge to the jury. The court charged the jury that, "The damages resulting from a breach of wаrranty of this type would be to make the repairs that you agreed to make and if you don't do it, to pay the reasonable cost of somebody else making them." There was no objection by either party to the charge on damages. This instruction to the jury, to which both parties assented by their silence, became the law of the case by which the jury was bound. Lee v. Gidley,
Defendant argues that plaintiff presented evidence showing at most $4,992.46 as the cost of repairs occasioned by defendant's breach of warranty to repair. Upon a careful review of the evidеnce considered in light of the court's charge, we consider that all damages in excess of $4,992.46 are excessive. A judgment will accordingly be entered that unless plaintiff files a remittitur with the clerk of this court within thirty days reducing the judgment to $4,992.46, the judgment of the trial court will stand reversed. If, however, such remittitur is filed, a judgment for $4,992.46, with interest thereon, will stand affirmed.
AFFIRMED CONDITIONALLY.
HOLMES, J., concurs.
BRADLEY, J., not sitting. *649