Opinion
6 Div. 240.
October 9, 1928.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Action for damages by W. S. Thornton against V. M. Townley. Judgment for plaintiff, and defendant appeals. Affirmed.
James J. Ray, of Jasper, for appellant.
It was error to overrule demurrer to the complaint. City Del. Co. v. Henry, 139 Ala. 161, 34 So. 389; Lipscomb v. Seaman, 151 Ala. 333, 44 So. 46; 4 Ency. Pl. Pr. 742. Damage to gears and transmission bearings was not within the purview of the pleading, and evidence as to same was erroneously admitted. Tillis v. Smith, 108 Ala. 264, 19 So. 374; L. N. v. Fletcher, 194 Ala. 257, 69 So. 634; Nat. Sur. Co. v. O'Connell, 202 Ala. 684, 81 So. 660; M. L. R. Co. v. Therrell, 205 Ala. 554, 88 So. 677. The injuries to Mrs. Little, who was riding in the plaintiff's car, were not elements of damage, and evidence of same was prejudicial to defendant. Evidence of an offer of settlement or compromise is not admissible. L. N. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R 251. It was error for the court to refuse to exclude from the evidence certain elements of damage testified to by plaintiff which were not contained in the body of his complaint. Dowdall v. King, 97 Ala. 635, 12 So. 405; A. G. S. v. Tapia, 94 Ala. 226, 10 So. 236.
Sowell Gunn, of Jasper, for appellee.
Assignments not insisted upon will be considered as waived. Ill. Cent. R. Co. v. Posey, 212 Ala. 10, 101 So. 644; Etheredge v. Tenn. Valley Bank, 20 Ala. App. 573, 104 So. 288. Demurrer is not the proper way to reach defective allegations in a complaint. Ala. Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Cole v. Tuck, 108 Ala. 227, 19 So. 377; Treadwell v. Tillis, 108 Ala. 262, 18 So. 886. The damages were sufficiently alleged, and evidence of damage to gears and bearings were referable to the allegation of damage to other parts of the car. B. A. R. Co. v. Norris, 4 Ala. App. 363, 59 So. 66; M. L. R. Co. v. Therrell, 205 Ala. 553, 88 So. 677; B. R. L. P. Co. v. Girod, 164 Ala. 10, 51 So. 242, 137 Am. St. Rep. 17; Grasselli v. Davis, 166 Ala. 171, 52 So. 35; B., R. L. P. Co. v. Brown, 150 Ala. 327, 43 So. 342. The fact that Mrs. Little, who was in the car with plaintiff was injured, was a part of the res gestæ. Miles v. Dir. Gen., 205 Ala. 83, 87 So. 837.
The demurrer to the complaint was not well taken. The allegations of injury, or damage, to plaintiff's car were sufficiently specific to apprise defendant of the nature and character of the evidence to be expected. Authorities cited by appellant are not to the contrary. The allegation of the complaint objected to by demurrer is that the collision between plaintiff's and defendant's automobiles "broke, bent, injured or damaged the door, axle, body, running board, fenders and other parts of plaintiff's said car." We know of no rule of law, and are cited none, requiring plaintiff in such cases to set forth and specify by name every screw or separate part of the car that may be damaged; it might take an expert mechanic to do this. The use of the words "and other parts of the car" was not the assertion of a claim of special unrecoverable damage. Under this statement plaintiff had a right to show injury to a wheel, or a gear, or "other part of the car." It was, as stated, in no sense a claim for special damages. It follows that evidence of damage to the gear and transmission was recoverable. Birmingham, etc., v. Norris, 4 Ala. App. 363, 59 So. 66; Mobile, etc., v. Therrell, 205 Ala. 553, 88 So. 677, and authorities cited.
There was no error in permitting plaintiff to show that Mrs. Little was in the car with him at the time and that she was injured. Miles v. Hines, 205 Ala. 83, 87 So. 837.
There is no assignment of error challenging the court's action in overruling defendant's motion to exclude the testimony of plaintiff that defendant, the day after the collision, promised to pay for repairs on plaintiff's car. It does not appear that this conversation was a negotiation for a compromise, and this was the only ground of the motion to exclude. It was not claimed that the evidence was illegal, irrelevant, incompetent, and immaterial. Donaldson v. Foreman, 213 Ala. 232, 104 So. 406; Hughes v. Daniel, 187 Ala. 41, 65 So. 518.
Affirmed.