Lisenby v. Capps

McOLELLAN, j. [1, 2] Originally this action, brought by appellee against appellant, was in detinue in a justice’s court for the recovery of an ox. From that court the cause went to the circuit court. There the plaintiff was allowed to file additional counts, one in trover and one in ease. The amendment was objected to; the objection was overruled; and, latterly, the defendant set up the statute of limitations of one year as a bar to a recovery on the count in case. Under the statute the amendment was properly allowed, and, when allowed, related back to the denial of a premise for the application of the limitation pleaded. Code, § 5367; Wilson v. Ratcliff, 73 South. 84, 197 Ala. 548. [3] The real controversy between the parties was upon the issues tendered by the count in case. The plaintiff contended that the defendant, a bailee, had so misused the bailor’s ox that it died. Case, not trover, is the appropriate remedy in such circumstances. Hitt Lumber Co. v. Ambrester, 192 Ala. 467, 68 South. 338. [4] The plaintiff testified that defendant told him “that he had had bad luck with the ox; • that he had lost it; * * * the ox was dead, and that he had come to settle for him.” The defendant moved to exclude the statement of the witness that he (defendant) had come to settle for the ox, on the ground that it was an offer of compromise. It does not appear that the statement attributed by the witness to the defendant was made to either invite or to effect a compromise. All the recital shows is that the defendant acknowledged the death of the animal and came to settle therefor. The familiar rule of evidence whereby offers of compromise are excluded because they are not admissions within the rule cannot be invoked. [5] On the examination in chief of the plaintiff he was asked this question: “Do you know of your own knowledge about his [defendant’s] having the beef sold, or using the hide?” The defendant objected to the question because it called for incompetent, irrelevant, and immaterial testimony, and because the evidence sought did not tend to shed light on the issues in the case. The objection was overruled, the witness answering: “Mr. Lisenby said he skinned the ox and sold his hide.” At that stage of the trial the matter sought by the question and the response thereto had a tendency to show the conversion of the animal by the defendant as charged in the trover count; the appropriation by the defendant of the hide of the animal being some evidence of the defendant’s assumption of ownership of the animal. . [6, 7] There was no error in refusing the general affirmative charge numbered 1 in the bill of exceptions. It was both bad in form and invaded the province of the jury. There was evidence authorizing the jury to infer that the animal was misused and died in consequence thereof. Charge 3 refused to defendant unduly contracted the issues tendered by the third count, which included the allegation that the animal was worked when not in fit condition to be worked. The hypotheses of the charge were that, in order to recover on count 3, the animal must have been either overworked or w’orlced when in a “diseased condition” of which at the time the defendant had knowledge. The complaint ascribed the wrongful death of the animal to the workipg of the animal at a time when it had become sick, pending its being worked by the defendant; whereas charge 3 would exonerate the defendant upon the negation of a “diseased condition,” which did not necessarily exclude the particular wrong described in the complaint. The judgment is affirmed. Affirmed. ANDERSON, O. J., and SAYRE and GARDNER, JJ., concur.