Walker v. Jones , 33 Ala. App. 348 ( 1947 )

The appellant Frank J. Gary has filed an application for a rehearing, and the appellee, L. M. Jones, has also filed his application for a rehearing urging that this cause should be affirmed as to all of the appellants rather than affirmed as to the appellant Frank J. Gary only.

We have carefully considered the appellant's application for a rehearing, and have concluded that it is without merit and should be overruled. It is so ordered.

The appellee, in his application for a rehearing, urges that error should not be charged to the lower court in admitting the testimony of the witness Bucky Bealle as to all of the defendants below, for the reason that there was no specific objection to the question for each defendant individually, and being admissible as to the defendant Gary, the court did not err in overruling the objection made generally.

Upon consideration we have concluded that the above argument is well taken. In Yarbrough et al. v. Armour Co., 31 Ala. App. 287, 15 So.2d 281, 284, which was an action of assumpsit against Fred Yarbrough and Eugene Yarbrough who were sued as "formerly partners" doing business under the name of Yarbrough Brothers, there was testimony admissible against Fred Yarbrough but not against Eugene Yarbrough. A general objection was made during the trial to this testimony and by the trial court overruled. In holding that the lower court could not be put in error for this ruling this court said:

"No specific objection to the admission of the evidence as against Eugene Yarbrough was made during the trial and, under the general rule, where the evidence elicited or sought to be elicited was in part relevant (certainly as to the other codefendant), the court will not be put in error for its admission under these circumstances. Jackson v. State,31 Ala. App. 212, 14 So.2d 593, and cases cited."

In view of the above doctrine we conclude that we should not have held the lower court in error in admitting the testimony of the witness Bealle as to all of the defendants.

In our opinion the evidence was amply sufficient for the jury to infer that all of these defendants were so connected in the sale of this automobile as to incur the liability imposed.

It follows therefore that no error can be charged to the lower court in refusing to give defendants' requested written charges Nos. 1 through 10, both inclusive, as these charges are in effect general charges in favor of the respective defendants.

Defendants' requested written charges D, M, W, X, and Z were in our opinion correctly refused as not being a correct statement of the law involved.

Other points are raised in the briefs submitted. We do not consider them of sufficient merit to warrant further extension of this opinion.

We wish further to say that in the above opinion we noted that the appellant, in his argument that the courts of this State should not entertain this suit because it was an attempt to recover a penalty imposed by a foreign jurisdiction, towit, the United States of America, relied on the Rhode Island case of Robinson v. Norato, 71 R.I. 256, 43 A.2d 467,162 A.L.R. 362.

In connection with our discussion of the above case, we now wish to cite the case of Testa v. Katt, 330 U.S. 386,67 S.Ct. 810, in which the Supreme Court of the United States overruled the doctrine of the Robinson v. Norato case, supra, and held that the United States Constitution and the laws passed pursuant thereto are the supreme laws of the land, binding alike upon States, courts, and the people, anything in the Constitution or laws of any state to the contrary notwithstanding; that an established policy of a state against enforcement by its courts or statutes of other states and the United States which it deems penal is not a valid excuse for the state to deny enforcement of claims growing out of a valid federal law, since the policy of the federal law is the prevailing policy in every state; and further that Rhode Island Courts could not refuse to enforce the Federal Emergency Price Control Act by declining to entertain a buyer's action for overcharge in the sale of an automobile because of its established policy against enforcement of statutes of other states and the United States which it deems penal, in view that such policy is contrary to the supremacy clause of the Federal Constitution and that the Rhode Island Courts have jurisdiction, adequate and appropriate under local law, to adjudicate such an action.

Since the appellee's motion for a rehearing is granted, and this cause affirmed as to all of the appellants it follows that all of the appellants and the sureties on their appeal bonds are liable for the payment of the judgment of the circuit court, ten per cent damages thereon with interest, and the costs accruing on appeal in this court and the court below, and it is so ordered.

Application of appellant, Frank J. Gary, for rehearing overruled and denied.

Application of appellee, L. M. Jones, for rehearing granted, and cause affirmed as to all appellants.