Appellees brought suit in the court below against appellant and the Tennessee Coal, Iron Railroad Company. The original complaint contained four counts. By amendment the Tennessee Coal, Iron Railroad Company was stricken as a defendant, and the cause proceeded against the appellant, resulting in a judgment against appellant for $600. After the Tennessee Coal, Iron Railroad Company was stricken as a defendant, the complaint was amended by adding two additional counts, designated as A and B. The plaintiffs withdrew counts 3 and B, and the cause was tried upon counts 1, 2, 4, and A. The appellant, defendant in the court below, objected to the filing of the amendment to the complaint, and also filed a motion to strike the amendment to the complaint; both the objection and motion being overruled.
Counts 1, 2, and 4 were based upon trespass for entering the house occupied by plaintiffs as a dwelling and carrying away furniture, clothing, etc. Count A was in trespass for evicting plaintiffs from a house occupied by them as a dwelling while one of the plaintiffs, G.J. Comstock, the husband, was in the military service in the army of the United States. There are several assignments of error, 17 in all, and we will discuss them in the order of their assignment.
Assignments 1 to 6, inclusive, are based upon the action of the court in overruling the demurrers, to the complaint as amended. However, these assignments are not noticed or insisted upon in brief and argument of appellant, and therefore, under the rulings of this court and of the Supreme Court, will be treated as waived. Fealy v. Birmingham, 15 Ala. App. 367,73 So. 296; Rosenau v. Powell, 184 Ala. 396, 63 So. 1020.
Assignments 9 to 15, inclusive, are based upon the action of the court in refusing to give several charges requested in writing by defendant. These charges were the affirmative charges to the complaint as a whole, and separately as to the several counts of the complaint. The bill of exceptions does not recite that it contains all of the evidence, and the court will not be put in error for refusing these charges.
"When, on appeal, the bill of exceptions fails to recite that it contains all the evidence, the *Page 432 appellate court will presume any state of evidence which would sustain the giving or refusal of an instruction * * * by the trial court." Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193,22 So. 854; Sanders v. Steen, 128 Ala. 633, 29 So. 586; Randall v. Wadsworth, 130 Ala. 633, 31 So. 555; Lewis Co. v. Lumber Co., 163 Ala. 592, 50 So. 1036; Ventress v. Clayton,165 Ala. 349, 51 So. 763; Middle-brooks v. Sanders, 180 Ala. 407,61 So. 898.
While this is the rule, we have, however, examined the record carefully, and it is our opinion that there was no error in the refusal of these charges.
Assignment 17 is based upon the action of the court in overruling defendant's motion to strike the amendment to the complaint. There was no error in overruling the motion. The statute (Code 1907, § 5329) expressly authorizes the joinder of all actions ex delicto in the same suit. If, as contended by appellant, the original complaint was in case and the amendment in trespass, still both were actions ex delicto, and their joinder in the same suit was authorized.
Assignments of error 7 and 8 are based upon exceptions to the oral charge of the court. We have examined the oral charge, and, when taken as a whole, as we must take it, we are of the opinion that the charge stated the law fairly to the defendant. If the defendant felt that the jury might be misled by these portions of the court's oral charge, it should have requested explanatory charges. At most, the portions excepted to could only be construed as misleading.
The sixteenth assignment of error is based upon the action of the court in overruling defendant's motion for a new trial. One of the grounds of the motion for new trial is that the verdict was excessive. We have very carefully examined the testimony in this case, and we are of the opinion that this ground of the motion is well taken and that the verdict is excessive. The proof clearly shows that the plaintiffs have been fully reimbursed for the destruction of their personal property, and the amount assessed against this defendant for eviction of the plaintiff was excessive. It is shown that no force was used, and, in our opinion, $300 would be sufficient damages for them to recover of this defendant.
Under the authority of the provisions of the statute approved April 2, 1911 (Acts 1911, p. 587), as amended by the act approved September 17, 1915 (Acts 1915, p. 610), we are of the opinion that there is no other ground of reversal in this case, except that the judgment of the lower court is excessive, and that $300 would be a proper amount of recovery. It is here ordered and adjudged by this court that this cause be reversed and remanded, unless the appellee file in this court a remittitur of the amount of the judgment recovered in excess of the sum of $300, such remittitur to be filed within 30 days. The clerk of this court will notify the appellees of the ruling made by this court, and that they are required to file a remittitur within the time required, or, upon their failure to do so, that the cause will be reversed and remanded as provided by statute.
It is further ordered and adjudged that, if said remittitur is duly filed by appellees as herein ordered, the judgment of the lower court for $300 is in all things affirmed.
On Entry of Final Judgment.
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