Opinion
6 Div. 845.
April 19, 1923. Rehearing Denied May 17, 1923.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Percy, Benners Burr, of Birmingham, for appellant.
Counts 2 and A were subject to demurrer for failure to show that the damages alleged were caused by the same transaction. Henry v. Carlton, 113 Ala. 636, 21 So. 225. Testimony as to the condition of objects several days after a transaction is inadmissible, unless it is shown that they were in the same condition at the time testified about as they were at the time of the transaction. Owen v. A. G. S. R. Co., 181 Ala. 552, 61 So. 924; Fletcher v. T. C. I. Co., 163 Ala. 240, 50 So. 996; C. of Ga. v. Teasley, 187 Ala. 610, 65 So. 981. One who enters premises to reclaim property sold by an instrument retaining title, and authorizing the seller to so enter and reclaim in the event of default, is not a trespasser. Street v. Sinclair, 71 Ala. 110.
George P. Bondurant, of Birmingham, for appellee.
The complaint was not subject to demurrer. Crews Green v. Parker, 192 Ala. 383, 68 So. 287; Stowers Fur. Co. v. Brake, 158 Ala. 639, 48 So. 89.
There was no error in overruling the defendant's demurrer to counts 2 and A because of their failure to show or charge that the things complained of resulted from the same transaction. We think each of the counts shows that the entry into the house and leaving the door open was but one continuous act, and do not think that they are reasonably susceptible of the interpretation that defendant's servants broke into the house and removed the refrigerator, then fastened the door, and returned at some other time and opened the door and left it open. These counts are unlike the one condemned in the case of Henry v. Carlton, 113 Ala. 639, 21 So. 225.
The evidence of John Island as to the condition in which he found the door and lock the following Monday when he examined same at the request of the plaintiff was only admissible upon the idea that conditions were similar, that is, that the lock and door were in the same condition when he examined them as they were when defendant's servants left them the previous Thursday, and there was no proof of this fact either before or after the reception of this evidence of Island. Indeed, the trial court ruled that the evidence of Island was not admissible, and only let it in upon the urgent insistence of counsel and with the assurance that it would be made competent by subsequent evidence as to the similarity of conditions and which was never produced. The trial court committed error in receiving this evidence, and the same was not cured by subsequent proof making the same competent. True, counsel for the defendant could have been more specific in his subsequent motion to exclude, but, having objected and excepted upon the introduction, the error could have only been cured by subsequent evidence making it competent or the exclusion of same. Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565.
The trial court did not commit reversible error in refusing defendant's requested charges I, 21, and 14. Charge I, if not otherwise faulty, ignores the plaintiff's denial of executing the conditional sale, and the defendant's servants had no right to enter the house and take the refrigerator except under a legal right to do so, although the entry was peaceable and without breaking the door.
Charges 14 and 21, if not bad in form, were fully covered by the charges given for the defendant.
There was no error in refusing the defendant's requested charges 17 and 19. There was evidence from which the jury could have reasonably inferred that the plaintiff's household articles would not have been damaged from the flood or storm on Saturday had not defendant's servants broken open the door and left it unfastened.
The trial court did not err in refusing the defendant's requested charges H and J. If plaintiff consented for them to come to his house and retake the refrigerator, this did not justify them in breaking open the door, as indicated by the evidence of plaintiff's witnesses.
Since this case must be reversed for the ruling upon the evidence, it is unnecessary to pass upon the motion for a new trial.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.