Opinion
6 Div. 781.
October 10, 1935. Rehearing Denied November 29, 1935.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
W. J. Wynn and Clarence Mullins, both of Birmingham, for appellant.
Where a complaint alleges specific physical injuries, no recovery can be had for disorders which do not necessarily and immediately flow from the specific injuries alleged. Testimony relative to female disorders of plaintiff was erroneously admitted. Birmingham v. Williams, 228 Ala. 456, 153 So. 639; Mobile L. R. Co. v. Therrell, 205 Ala. 553, 88 So. 677; 8 R.C.L. 612. Errors in admission of illegal evidence cannot be cured by charges in general terms or by anything short of direct instructions excluding the illegal evidence. Murphy v. Hays, 221 Ala. 566, 130 So. 202; Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A.L.R. 1031; Maryland Cas. Co. v. McCallum, 200 Ala. 154, 75 So. 902; Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann.Cas. 1916E, 565; Pace v. L. N. R. Co., 166 Ala. 519, 52 So. 52; Burk v. Knott, 20 Ala. App. 316, 101 So. 811; Southern I. S. Co. v. Acton, 8 Ala. App. 502, 62 So. 402.
Brown Brown and Harsh, Harsh Hare, all of Birmingham, for appellee.
Where the force which inflicted the injury actually claimed also demonstrates its violence by inflicting other injuries or even property damage not claimed or recoverable, evidence of such other injuries or damage is admissible to show the degree of the force or the violence of the impact. Louisville N. R. Co. v. Mothershed, 121 Ala. 650, 26 So. 10; Ala. Power Co. v. Bruce, 209 Ala. 423, 96 So. 346. It is necessarily admissible as part of the res gestae. Louisville N. R. Co. v. Pearson, 97 Ala. 211, 12 So. 176; 6 Ency.Dig.Ala.Ref. 85. If there was any error, it was without injury because cured by express disclaimer in open court by plaintiff and by the court's charge. Hendrix v. Hendrix, 215 Ala. 646, 112 So. 219; Supreme Court Rule 45; Alabama G. S. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am.St.Rep. 28; Southern R. Co. v. McEntire, 169 Ala. 42, 53 So. 158. These elements of damage were recoverable, and the ruling on former appeal is unsound. Mobile L. R. Co. v. Therrell, 205 Ala. 553, 88 So. 677.
This case was reversed upon former appeal, 228 Ala. 456, 153 So. 639, because of the improper admission of evidence as to the abnormal recurrence of the plaintiff's menstrual, periods and the refusal of the defendant's charges seeking to eliminate damages for menstrual or female troubles upon the theory that such injury or damage was not within the complaint or the claim filed against the defendant.
Upon the next trial, the one from which this appeal arose, counsel for plaintiff, while perhaps in varying form, injected the substance of this objectionable evidence over the objection of the defendant which should have been sustained by the trial court. The admission of this evidence and the persistence of counsel in injecting it into the case was such prejudicial error as calls for a reversal, notwithstanding the disclaimer of counsel of any desire to recover damages as for menstrual trouble or disorder, or the giving of the defendant's charge excluding such an element of damage. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.