Hoefer v. Snellgrove

261 So. 2d 431, 288 Ala. 407, 1972 Ala. LEXIS 1236
CourtSupreme Court of Alabama
DecidedFebruary 10, 1972
Docket4 Div. 429
StatusPublished
Cited by10 cases

This text of 261 So. 2d 431 (Hoefer v. Snellgrove) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoefer v. Snellgrove, 261 So. 2d 431, 288 Ala. 407, 1972 Ala. LEXIS 1236 (Ala. 1972).

Opinions

BLOODWORTH, Justice.

We granted defendant’s petition for certiorari to review a decision of the Court of Civil Appeals, Ala.Civ.App., 261 So.2d 426, because of possible conflicts with prior decisions of this court.

Suit was brought by Mrs. Nettie Hoefer seeking recovery from Mrs. Linnie H. Snellgrove for personal injury arising out of an automobile accident. Verdict and judgment were for the plaintiff for $2,500. Plaintiff, however, was not satisfied with this amount and appealed to the Court of Civil Appeals contending that errors below were responsible for the low award by the jury.

In the Court of Civil Appeals the plaintiff made five assignments of error, but that court held that four of these assignments (which complained of inadequacy of damages) were insufficient.

In the one remaining assignment of error, plaintiff complained of two separate and specific rulings of the trial court. One, that the trial court erred in granting defendant’s motion to strike certain allegations of permanent injury from the complaint. The other, that the trial court erred in sustaining defendant’s objection to introduction of mortality tables.

The Court of Civil Appeals reversed, holding that the trial court erred both in granting the motion to strike and in excluding the mortality tables.

In her amended complaint plaintiff alleged, inter alia, as “special damages” that she was permanently injured and totally disabled as a result of defendant’s negligence. Before trial, defendant moved to strike these allegations from the complaint as being prolix and frivolous contending that permanent injury need not be alleged as “special damages” in order to be proven. The trial court granted this motion and the allegations of permanent injury and total disability were struck from the complaint. Nevertheless, plaintiff was allowed to introduce evidence of such injury and disability under general damage allegations.

During the course of trial the court sustained defendant’s objection to the introduction of certain mortality tables which [409]*409indicated plaintiff’s life expectancy. In sustaining the objection the trial judge remarked that he was of the opinion that no satisfactory proof of permanent injury had been introduced. However, plaintiff made no objection nor took any exception to these remarks, though he did except “to the court’s ruling.” (Exception to the court’s ruling is, of course, unnecessary under Title 7, § 818(1), Code of Alabama 1940, as last amended.) In his oral charge, the trial judge instructed the jury not to consider any of the allegations of damages in the stricken portion of the complaint. Plaintiff did not except to this portion of the oral charge. In fact, plaintiff’s attorney announced he was satisfied with the •oral charge.

Our rule is, and has long been followed, that where one assignment of error relates to two separate and specific rulings •of the trial court, the assignment of error will fail unless each ruling is erroneous. American Cas. Co. of Reading, Pa. v. Devine, 275 Ala. 628, 157 So.2d 661 (1963). As we have said, “the assignment of error must be altogether good if it is good at all.” Payne v. Jones, 284 Ala. 196, 199, 224 So.2d 230, 233 (1969); 2A Ala.Dig., Appeal & Error, '§^’736.

Since, in plaintiff’s one valid assignment of error there are two separate and distinct rulings of the trial court complained of, the assignment will be bad unless both rulings constitute reversible error.

The Court of Civil Appeals held that the trial court erred in granting the motion to strike. We do not agree with the rationale by which that court arrived at this conclusion. Nor, do we find that this purported error in any way injured the plaintiff. Thus, we conclude that if the trial court erred in sustaining the motion to strike, it was “error without injury,” and does not constitute reversible error. In light of this conclusion we must reverse the decision of the Court of Civil Appeals without deciding whether that court was correct in holding that the trial court erred in excluding the mortality tables.

It seems apparent that, in the lower court, this case was tried on the theory that evidence of permanent injury was admissible under the existing allegations without the necessity of being alleged as “special damages.”1 The Court of Civil Appeals agreed with this theory, but concluded that in granting the motion to strike (when considered with the ruling on the mortality tables and the oral charge) the trial court had, in effect, “charged out” any evidence of permanent injury. The Court of Civil Appeals held this action by the trial court so prejudiced the plaintiff that the cause should be reversed. In reaching this, conclusion we think the Court of Civil Appeals erred.

It is a well-settled principle of law that matters not objected to cannot be considered for the first time on appeal. Vick v. Bishop, 252 Ala. 250, 40 So.2d 845 (1945); 2 Ala.Dig., Appeal & Error, *©^181. It is even more firmly settled that an appellate court is limited to a review of those errors brought before it by a proper assignment of error. Supreme Court Rule 1, Revised Rules of the Supreme Court, 279 Ala. XXI, Code of Alabama 1940, Title 7, Appendix. Belcher v. City Commission of City of Birmingham, 280 Ala. 252, 192 So.2d 454 (1966); Snellings v. [410]*410Jones, 33 Ala.App. 301, 33 So.2d 371 (1948), cert. den. 250 Ala. 89, 33 So.2d 273 ; 2A Ala.Dig., Appeal & Error, <3=*719(1).

In view of the fact that the trial judge’s remarks and his oral charge, were neither excepted to, nor assigned as error on appeal, we hold the Court of Civil Appeals erred in considering these factors when it determined that the motion to strike was improperly granted. Old Southern Life Insurance Company v. Free, 46 Ala.App. 622, 247 So.2d 379 (1971).

We need ■ not decide whether the trial court erred in granting the motion to strike, having concluded that if there was error in this action, it was “error without injury.”

We reach this conclusion on the basis of our cases which hold that error in striking allegations from a complaint, or from a plea, is not prejudicial or reversible error where the matters alleged are admitted under other counts or pleas, or allegations. See, 2A Ala.Dig., Appeal & Error, ^1042(2) (5) ; J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 449, 212 So.2d 831 (1968). The theory is that the party has suffered no injury when, at trial, that party is permitted to introduce the same evidence which would have been admissible under the allegations struck. In this case, it is clear that plaintiff was allowed to introduce evidence of permanent injury (as well as total disability) notwithstanding the motion to strike these allegations had been granted.

In Garner v. Morris, 187 Ala. 658, 664, 65 So. 1000, 1002 (1914), Mr. Chief Justice Anderson, in a similar situation, wrote for the court.

“The defendant’s pleas were manifestly bad, or the defense attempted was provable under the general issue; but,
whether all of them were provable under the general issue or not, the defendants were given leave to plead in short and by consent all matter that should be specially pleaded, and the record shows that they were permitted to introduce in evidence the matter set up in said special pleas. If there was any error in striking said pleas, it was error without injury.” [Emphasis supplied]

Another case in point is Brothers v.

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Cite This Page — Counsel Stack

Bluebook (online)
261 So. 2d 431, 288 Ala. 407, 1972 Ala. LEXIS 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoefer-v-snellgrove-ala-1972.