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Thus, I agree that the trial court had ample authority to have directed that such an allocation be made.
I concur in that portion of Judge Harold’s opinion which affirms the sum of $14,580.35 awarded Dr. Rowland.
BOWLING, Judge, dissenting.
I respectfully dissent. The majority finds that the trial court erred in failing to give the plaintiff credit on the verdict of $5,000.00 against the judgment in favor of Dr. Rowland in the amount of $5,580.35. It is my opinion that the majority has ignored the facts of this case and has extended the doctrine of offset to a case where it should not apply.
The only issue in this case was the liability of the defendants to the plaintiff. It was not an issue as to whether there was damage to the plaintiff in the sum of $5,580.35. The question of liability of the defendants to the plaintiff on the note of Dr. Rowland was the only issue in the trial of this case. The trial court, in addition to holding that defendants, the City of Anniston and Ruby C. Rowland, were liable to Dr. Rowland in the amount of $5,580.35, further stated in the judgment that the plaintiff, Ruby C. Rowland, was not entitled to any recovery against Dr. Rowland under a negligence theory and that plaintiff was entitled to only the sum of $5,000.00. In the case of Testerman v. Freeman, 280 Ala. 122, 190 So.2d 752, the court said:
“`The effect of a judgment pro tanto in a case is to extinguish the original claim or cause of action and also to reduce the original claim or cause of action, pro tanto, to the extent of the judgment in favor of the plaintiff.'”
In my opinion, this holding of the court that the plaintiff is not entitled to recover the sum of $5,580.35 is a
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