Woodall v. Malone-Harrison Motor Co. , 219 Ala. 366 ( 1929 )

On Rehearing. In the former opinion in this case, reference was made to the fact that the compromise agreement written on the mortgage was not before the court on this appeal. It is now urged that we were in error in this statement and that it is copied in appellee's replication set out in the record. But there is no question presented on the replication. The bill of exceptions does not show its introduction in evidence, nor is it set out therein, though one witness referred to it as being "indorsed on our replication," and other witnesses testified with reference to it, and appellees admitted its execution.

The court has fully considered this situation, and has read in consultation the evidence relating to this instrument, and upon the authority of the principle given effect in Catts v. Phillips, 217 Ala. 488, 117 So. 34, has concluded that it is not sufficiently shown in the bill of exceptions, where alone evidence should appear, to justify a consideration of the rulings and charge of the court relating to it, which appellants have assigned for error.

It is also insisted that we should have found that the court erred in overruling objections to evidence of witnesses for appellee who testified, in substance, as to the machinery in question: That there was nothing wrong with it; that there were no defects; that it worked all right; and the like.

We conclude that the evidence was not expressive of the mere opinion of the witnesses, "but the result of personal observation and knowledge," and as "an equivalent to a specification of the facts." We cite in support of this conclusion the following principle: "The true line of distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent of a specification of the facts. * * * In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based." Wharton Ev. 516; Raisler v. Springer, 38 Ala. 703, 82 Am. Dec. 736; Avary v. Searcy, 50 Ala. 54; S. N. Ala. R. R. Co. v. McLendon, 63 Ala. 266; A. G. S. R. R. Co. v. Yarbrough, 83 Ala. 238,3 So. 447, 3 Am. St. Rep. 715.

We think that the evidence referred to by appellants is of the character thus described. The authorities cited by appellants on this point in their application for rehearing do not relate to that nature of evidence, and do not reflect upon the principle stated and quoted herein above.

We have not been cited to what we consider reversible error in the record. It results that the application for rehearing should be and is overruled.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.