Commonwealth Life Ins. Co. v. Reilly

ANDERSON, O. J.

This case was tried by the court without a jury, and the evidence was ore tenus, or partly so, and its conclusion upon the facts was like unto the verdict of a jury and which will not be disturbed by this court unless contrary to the great weight of the evidence. Hackett v. Cash, 196 Ala. 403 , 72 South. 52 . The plaintiff’s evidence was believed by the trial court and was sufficient to support the finding, and, while disputed or contradicted in some material aspects by the defendant’s witness, he was not contradicted, by an overwhelming weight of the evidence.

There was no error in permitting the plaintiff to state as a fact what was due him under his dealings with the defendant as this was a collective fact as to which he could testify and as to which the defendant had the right to and did cross-examine him. Richards v. Herald Shoe Co., 145 Ala. 657 , 39 South. 615 ; Dominey v. Dowling, 200 Ala. 619 , 76 South. 977 .

The tria! court committed no reversible error in permitting the plaintiff, who was an experienced insurance man, to define or explain certain technical terms or phrases used In the letters and the meaning of same as used in insurance parlance.

We cannot determine whether or not the amendment of a so-called bill of particulars was not a permissible one, as the bill of exceptions contains no bill of particulars which may have been furnished the defendant. True, there is a statement by appellant’s counsel to the reporter to note certain dates or facts as to a bill of particulars; but this was but a statement of counsel not under oath, and was not proof of a bill of particulars or the contents of same.

Finding no reversible error in the record, the judgment of the circuit court must be affirmed, and which is accordingly done.

Affirmed.

SAYRE, GARDNER, and MIDLER, JJ., concur.