Opinion
6 Div. 432.
June 23, 1927.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Cabaniss, Johnston, Cocke Cabaniss, of Birmingham, for appellants.
The transcript or memorandum of plaintiff's evidence was shown to have been accurate and was admissible, not only for the purpose of refreshing recollection, but as independent evidence of the facts therein stated. Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; B. R. L. P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Lueders v. U.S. (C.C.A.) 210 F. 419. The refusal of the affirmative charge as to the first count for false imprisonment should have been given. Ex parte Central Iron Coal Co., 212 Ala. 130, 101 So. 824; Crescent Motor Co. v. Stone, 208 Ala. 137, 94 So. 78. The verdict of the jury was a quotient verdict, and should have been set aside. Int. Agri. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A. (N.S.) 415. The verdict is so excessive as to show passion and prejudice.
Horace C. Wilkinson and Crampton Harris, both of Birmingham, for appellee.
Where a memorandum contains statements which are not competent evidence, the burden is upon the party offering the memorandum to separate the competent from the incompetent. Deal v. Hubert, 209 Ala. 18, 95 So. 349. The charge given by consent of the parties, limiting the issues, became the law of the case, and appellant cannot assume in the appellate court an attitude inconsistent with that taken in the trial court. Talley v. Whitlock, 199 Ala. 36, 73 So. 976; Bromberg v. Norton, 208 Ala. 117, 93 So. 837; 3 R. C. L. 718; Clinton M. Co. v. Bradford, 192 Ala. 576, 69 So. 4. To render a verdict objectionable and subject to vacation on the ground that it was a quotient verdict, it devolves upon the assailant to show that the jurors in advance agreed to be bound by a particular mode adopted in arriving at the verdict. B. R. L. P. Co. v. Moore, 148 Ala. 130, 42 So. 1024; West. Union Tel. Co. v. Morrison, 15 Ala. App. 544, 74 So. 88; A. C. G. A. v. Lee, 200 Ala. 550, 76 So, 908. The verdict was not a quotient one. B. R. L. P. Co. v. Clemons, 142 Ala. 160, 37 So. 925. The appellate court cannot, in absence of a motion for new trial on the ground that the verdict was excessive, pass on the question of excessiveness vel non of the verdict. C. of Ga. v. Chambers, 197 Ala. 93, 72 So. 351.
It may be conceded that the transcript of the plaintiff's testimony on the former trial was sufficiently identified by the testimony of Tyler in connection with Manly, the stenographer who took it down, and was admissible under the third rule as laid down in the case of Birmingham L. P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241. But it contained much immaterial matter, including certain answers of Helton as well as the plaintiff, and, in order to put the trial court in error, the good should have been separated from the bad when it was offered in evidence.
Upon the close of the testimony the plaintiff requested the following written charge:
"If you believe from the evidence that the plaintiff, Mr. Swaney, was not in the car at the time and place named by Mr. Helton, then you should find for the plaintiff."
The record recites that:
"The defendants in open court consented to the giving of said charge, and the same was read to the jury."
This was, in effect an admission of the liability and responsibility of the defendants for the arrest and prosecution, and narrowed the issues down to whether or not the plaintiff was in the car when arrested by Helton and the amount of damages he was entitled to recover if he was not in said car. True, the consent did not specify any particular count under which the plaintiff would be entitled to recover, but it admitted a liability with the hypothesis under some one of them, and the refusal to eliminate either of them was of no injury to the defendants, as they each claim the same amount, and the same character of damages was recoverable under each of them.
The plaintiff denied being in the car, and he was corroborated, in a sense, by the witness, Tucker, and we cannot say that the finding of the jury that he was not in the car was so contrary to the great weight of the evidence as to put the trial court in error for refusing a new trial upon this ground.
While the slips of themselves would indicate a quotient verdict, the testimony of some of the jurors negatives a quotient verdict strictly speaking.
The judgment of the circuit court is affirmed.
Affirmed.
All the Justices concur.