65 So. 141 | Ala. | 1914
-This action was to recover $14 balance clue for work done by plaintiff for defendant in guttering the defendant’s residence. The defendant pleaded set off and recoupment, and the general issue. The trial resulted in a verdict and judgment for the defendant, from which judgment the plaintiff appeals.
There are quite a number of assignments of error, and all are insisted upon. They go to the admissions and rejections of certain parts of the testimony and to the charges of the court. It is unnecessary to treat each assignment separately. All are clearly without merit, except one, which we will treat.
The defendant was asked by his counsel the following question: “What, in your judgment have you been damaged by the defective and improper condition in which said guttering was put up and left?” The plaintiff objected to the question, assigning the following grounds: “That the question called for the conclusion of the witness, and that the question sought to invade the province of the jury; it being for the jury to ascertain from proper data the extent of the defendant’s damages, if any.” The court overruled the objection and allowed the witness to answer, and- he answered that in his judgment he was damaged to the amount of $25.
This question was improper; it called for illegal testimony. The grounds of the objection pointed out the defects, and the trial court erred in allowing it to be
The inquiry as shown by this question was illegal; it called for a pare supposition or conclusion of the witness as to the amount of the damages he had suffered by the plaintiff’s failing to properly gutter the house. of the witness. The illegal question was followed by a responsive answer prejudicial to the plaintiff, who objected. The question of the competency of this evidence was as well raised by the objection to the inquiry, as it would have been by objection to the answer. An objection to the answer or a motion to exclude it would have been merely a repetition or accentuation of the objection. The trial court, in overruling the objection to the question, clearly ruled that a responsive answer was admissible evidence. If the answer had not been responsive to the question, but had been illegal, then, of course, to invoke a ruling of the trial court, a motion should have been made to exclude the answer. The answer being strictly responsive, however, such motion to exclude the answer -was not necessary.—E. T. V. & G. R. R. Co. v. Bayliss, 74 Ala. 150; Gilmer v. City of Montgomery, 26 Ala. 668. That the testimony elicited by this question was incompetent has been repeatedly held by this court. In the case of Young v. Cureton, 87 Ala. 728, 6 South. 352, it is said: “As witnesses, the defendants .were asked ‘what damages they sustained by the failure’ of plaintiff to perform the contract? With some exceptions, witnesses will not be allowed to state their opinion, though it may be founded on facts, or
In the case of Krebs v. Brown, 108 Ala. 510, 18 South. 659, 54 Am. St. Rep. 188, it is said: “When defendant Brown was on the stand as a witness in his own behalf, he was handed a list of the goods claimed to have been damaged, which were set out in the plea, and the following question was asked: State whether or not that is a correct list of the goods damaged and their values, and if the amount thus shown is the correct amount of damages to the goods.’ The plaintiff objected to the question, and, his objection being overruled, he excepted. The witness answered that ‘it was a correct list of the goods damaged, and that, as they were rendered Avorthless by the wetting received, the values as laid down in the plea Avas the correct amount that they Avere damaged.’ The measure of damages for injury to property is generally the difference between its value before and after the injury; and it is not, generally, proper to ask a witness to state the amount of the damage.—Young v. Cureton, 87 Ala. 727 [6 South. 352].” C. of G. Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392.
In the recent case of Central of Georgia Railway Company v. Jones, 170 Ala. 613, 54 South. 510, 37 L. R. A. (N. S.) 588, the cases were reviewed, and it was
The witness having testified to all the facts, the jury should have been allowed to say what was the amount of damages suffered. It therefore follows that the ruling of the court, in this case, permitting the question calling for the incompetent testimony, was error to the prejudice of the plaintiff, and that this error must work a reversal of the judgment.
Reversed and remanded.