69 So. 335 | Ala. Ct. App. | 1914
Lead Opinion
At the time of the submission of this case a motion to dismiss the appeal was urgently pressed upon the court, on the ground, among others, that no copy of appellant’s brief had been served on counsel for appellee prior to or at the time of submission, as required under the rules of the court. —Code, p. 1509, rule 13 (175 Ala., 61 South, vii). Upon hearing the motion the court deemed the showing made by the appellant sufficient to authorize a submission of the case, and the motion to dismiss the appeal is overruled.
“One who has made a choice between two inconsistent steps or courses of action is confined to that chosen, and is estopped to assert any right or claim any benefit growing out of or based upon the other.”—Farley Nat. Bank v. Henderson, 118 Ala. 441, 472, 24 South. 428, 437.
As said by Mayfield, J., in Travis, Adm’r, v. Sloss-Sheffield S. & I. Co., 162 Ala. 606, 607, 50 South. 108, “A party is not allowed to mislead the court into error, even unintentionally and profit thereby.”
The statement in the appellant’s brief and contention to the effect that no part of the evidence is of a nature that would support a claim for punitive damages is not borne out by the evidence set out in the record, and this contention that punitive damages are not recoverable in an action of this nature, as referred to the evidence is not sound.—W. U. Telegraph Co. v. Seed, 115 Ala. 670, 22 South. 474; Manker v. W. U. Telegraph Co., 137 Ala. 292, 34 South. 839; W. U. Telegraph Co. v. Manker, 145 Ala. 418, 41 South. 850; W. U. Telegraph Co. v. Stokes, 171 Ala. 168, 54 South. 181.
We have discussed all the matters presented by brief in such a manner that they can be regarded as insisted upon for consid-. eration on review here, and, indeed, some that are not so presented.—Fitts v. Phoenix Auction Co., 153 Ala. 635, 45 South. 150. We find no error insisted upon that would authorize a reversal of the judgment, and an affirmance is accordingly ordered.
Affirmed.
Rehearing
ON REHEARING.
Our attention is directed, on an application .for rehearing, to the fact that the original brief not only complained of the evidence not being sufficient to support a claim for punitive damages (a proposition passed upon in the opinion), but that the point was also made that such damages were not recoverable in the form of action (ex contractu), brought by the plaintiff (appellee), and that the court’s refusal to give the written charge requested by appellant, to the effect that there could be no recovery of punitive damages, was argued and insisted upon as con
The error of the court in submitting the question of the recovery of punitive or exemplary damages to the jury was prejudicial error under the facts shown by the record, requiring a reversal of the judgment. The former order of affirmance is set aside, the judgment appealed from its reversed and the case remanded, to the. end that a trial be had in conformity with our holdings.
Reversed and remanded.