Western Union Tel. Co. v. Emerson , 14 Ala. App. 247 ( 1914 )

PELHAM, P. J.

At the time of the submission of this case a motion to dismiss the appeal was urgently pressed upon the court, on the ground, among others, that no copy of appellant’s brief had been served on counsel for appellee prior to or at the time of submission, as required under the rules of the court. —Code, p. 1509, rule 13 (175 Ala., 61 South, vii). Upon hearing the motion the court deemed the showing made by the appellant sufficient to authorize a submission of the case, and the motion to dismiss the appeal is overruled.

(1) At this time it was earnestly insisted by appellee’s counsel, in the oral argument of the case before the court, that the failure of the appellant to insist in the brief filed on submission of the cause upon many of the errors assigned on the record was a waiver and abandonment thereof. The case was argued orally before the court and submitted on the appellant’s brief on the 23rd day of April, 1913, and within the 10 days required under rule 13 (Code, p. 1509) the appellee’s counsel filed their brief and argument, in which they again made the point, with citation of authorities, stressing their insistence that the court was restricted in the consideration of the assignments of error to those insisted upon in the appellant’s brief on submission and not waived under the rules and previous holdings of the Supreme Court. . It is the appellee’s right to confine the errors to be reviewed to those properly urged in the brief filed on the original submission; and, as appellee stands upon her rights in this particular and insists upon the waiver of other errors assigned, we will consider and discuss as grounds of reversal only those errors not waived or abandoned.—L. & N. R. R. Co. v. Holland, 173 Ala. 675, 693, et seq., 55 South. 1001; Dickens v. Dickens, 174 Ala. 345, 355, 56 South. 809.

(2) The brief filed on submission does not conform to the rules with respect to the preparation of briefs (rules 10 and 12 [61 South, vii]), and contains the citation, of no authority. It complains, however, in broad terms, of the rulings of the court on certain matters made the basis of the assignment of errors, and loosely argues these propositions. One of the questions thus presented and insisted upon as showing error in the ruling of the trial court is that the court sustained demurrers to the defendant’s pleas A, B, C, and D, and assignments of errors are based on such rulings. Pleas A, B, C, and D are pleas in abatement, averring that the suit was originally instituted by the plaintiff Evie Emerson alone, and that the plaintiffs Nannie Black, Bama Fitts, and Leila Davis had previously instituted individual suits against the defendant on the same contract growing out of the same alleged breach, which were pending at the time the complaint was amended, making the plaintiffs in those suits parties plaintiff to this suit. The record shows that the defendant had, previous to the filing of these pleas in abatement, filed plea No. 11 in abatement of this suit instituted in the name of Evie Emerson as plaintiff, averring a nonjoinder of parties plaintiff, and alleging that the contract, the foundation of the suit, was made by the defendant, not alone with the plaintiff Evie Emerson, but jointly with her and the said other named parties, Nannie Black, Bama Fitts, and Leila Davis. The judgment entry set- out in the record shows that the plaintiff confessed this plea in abatement interposed by the defendant, and amended her complaint by adding the said Nannie Black, Bama Fitts, and Leila Davis as parties plaintiff to this cause of action. The judgment entry further shows that the plaintiffs took a nonsuit in each of said separate individual suits, and- were required by the court, on the motion of the defendant, to pay the costs of said suits before being permitted to further prosecute this suit after amending the complaint by adding these parties as plaintiffs. The demurrers to the defendant’s pleas in abatement A, B, C, and D were properly sustained, aside from the fact that the judgment- entry shows that nonsuits were taken in each of the separate individual suits and the plaintiffs not allowed to prosecute their suit further after amendment until the costs in the suits instituted by these parties suing separately had been paid; for the reason that the amendment adding these persons as parties plaintiff had been made necessary by the .defendant successfully maintaining the position taken by it in its plea in abatement No. 11. It was asserted in that plea that the contract sued upon was a joint contract made between defendant and all of the said parties, and these parties were, in consequence of this position taken by the defendant, forced to abandon their separate suits and join in the suit before the court as necessary parties plaintiff to it. Having gained the advantage of requiring the plaintiffs to join in the action as necessary parties to maintain the suit, the defendant was estopped from assuming a position inconsistent with that position, and setting up the same things in another and different aspect, by repugnant pleading to the prejudice of the adverse party in that suit, or another suit, for that matter, when founded on the same subject-matter. —16 Cyc. 796; Brown v. French, 159 Ala. 645, 49 South. 255; Woodruff v. Stough, 107 Ala. 314, 18 South. 258; Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241; Fox v. Sampey, 9 Ala. App. 561, 63 South. 769.

“One who has made a choice between two inconsistent steps or courses of action is confined to that chosen, and is estopped to assert any right or claim any benefit growing out of or based upon the other.”—Farley Nat. Bank v. Henderson, 118 Ala. 441, 472, 24 South. 428, 437.

As said by Mayfield, J., in Travis, Adm’r, v. Sloss-Sheffield S. & I. Co., 162 Ala. 606, 607, 50 South. 108, “A party is not allowed to mislead the court into error, even unintentionally and profit thereby.”

(3) In one and the same paragraph of the appellant’s brief, it is insisted that the court improperly overruled motions to strike parts of the complaint as setting up matters that were not properly recoverable as damages, overruled objections to evidence, and refused to give charges requested by the defendant along the same lines. No specific error is pointed out, and we are directed to no particular ruling of the court in this particular as constituting error. The insistence as to error is made only in a general way and jointly, and no authorities are cited in support of the general statement, which is no more than a repetition of the assignments of error, and is not a sufficient insistence to require a review of these questions.

The statement in the appellant’s brief and contention to the effect that no part of the evidence is of a nature that would support a claim for punitive damages is not borne out by the evidence set out in the record, and this contention that punitive damages are not recoverable in an action of this nature, as referred to the evidence is not sound.—W. U. Telegraph Co. v. Seed, 115 Ala. 670, 22 South. 474; Manker v. W. U. Telegraph Co., 137 Ala. 292, 34 South. 839; W. U. Telegraph Co. v. Manker, 145 Ala. 418, 41 South. 850; W. U. Telegraph Co. v. Stokes, 171 Ala. 168, 54 South. 181.

(4) What has been said is a sufficient answer to the general statement contained in appellant’s brief that there could be no joint recovery by the plaintiffs in the cause of action. These parties plaintiff were made so on defendant’s insistence that it had jointly contracted with them, and defendant cannot be heard in denial of their rights to a joint recovery. — Authorities supra. Under the conditions shown, as well as generally, the plaintiffs were at least entitled to a joint recovery of nominal damages or that damage which they jointly suffered.

We have discussed all the matters presented by brief in such a manner that they can be regarded as insisted upon for consid-. eration on review here, and, indeed, some that are not so presented.—Fitts v. Phoenix Auction Co., 153 Ala. 635, 45 South. 150. We find no error insisted upon that would authorize a reversal of the judgment, and an affirmance is accordingly ordered.

(5) After the opinion in this case had been agreed upon in consultation and the foregoing opinion was prepared, and as late as November 3, 1914 (the case was submitted April 23, 1913), the appellant has filed an additional brief, but the insistence on errors made in this subsequently filed brief cannot have the effect of retracting the waiver, made in the brief filed on the original submission, as to the errors assigned, but not urged, so as to authorize a consideration.—Dickens v. Dickens, supra; L. & N. R. R. Co. v. Holland, supra. We have discussed all the matters before us properly raised for our consideration in what we have heretofore said, and do not regard there is reversible error in the matters presented.

Affirmed.