Johnson v. Lightsey

A. J. WALKER, C. J. We cannot affirm that the court erred in the admission of evidence, unless the vice of its ruling is apparent from the bill of exceptions. The entire evidence in this case does not seem to be set forth in the bill of exceptions. It is conceivable- that, in a case where the negligence of a carrier by water is> the point of controversy, the fact of his communicating with a point above on the river, as to the stage of the water, might be material and relevant. For example, if a boat were aground, it might be a matter of proper caution for the carrier to ascertain, by telegraphic communication, whether there was a prospect of an early rise in the river; the existence, or want of such a prospect, might materially influence the judgment of a prudent man in such a-contingency ; and it might be that the failure to resort to the telegraph for information, as to the approach of a rise, would justify an argument against the carrier as to the exercise of proper diligence. The bill of exceptions does not negative the existence of circumstances, in which the testimony would have been relevant; and presuming in favor of the correctness of the ruling in the circuit court, we regard it as justified by the facts of the case, as they were presented to that court- [2.] The defendant could not complain that there was a delay at£ Upper Peach Tree,’ while the pilot returned for other boats, if such delay was pursuant to his agreement, [173] made through his agent. He could recover no damages for injury resulting from a delay to which he assented. Colbert v. Daniel, 32 Ala. 14. It was, therefore, permissible for the plaintiff to prove, that there was an “ understanding,” before the commencement of the voyage, with defendant’s agent, that such delay should occur ; because it afforded an excuse for that from which negligence might otherwise have been argued. [3.] The fact that two boats, lashed together, had frequently been taken down the river, had a material and direct bearing upon the question, whether there was negligence in the plaintiff’s adopting the same plan. The tendency of the proof was to demonstrate that the plaintiff, in lashing two boats together, did not adopt a new and untried plan of navigation, but one which had been successfully practiced before. There was, therefore, no error committed in permitting the plaintiff to prove by his 'witness, “that he had seen sometimes one boat, at other times two and throe boats, lashed together, going down the riverand that it was customary on the Alabama river for flat-boats, laden with cotton, to descend two lashed togeter. [4.] The remaining question to be considered in this case, is, whether the pilot on the boats, freighted with the defendant's cotton, was competent to testify as a witness for the plaintiff'. As the defendant prosecutes his claim against the plaintiff by plea of set-off' the question is to be considered as if the defendant were prosecuting a suit against the plaintiff, and the latter were offering the witness for his protection against a recovery. The argument for the appellant is, that the agent, for whose wrongful act, injuring the property of a third person, the principal is sued, must be an incompetent witness lor the principal, where the same act which renders the principal liable, also makes the agent liable to the principal. In such a case, the agent would certainly be incompetent to testify for his principal, at the common law. — Bank of Oswego v. Babcock, 5 Hill, 152 ; Middlekauff v. Smith, 1 Md. R. 329-341; McClure v. Whitesides, 2 Carter’s Ind. 573; Green v. New River Company, 4 Term R. 589; Gardner [174] & Devereaux v. Smallwood, 2 Hay. 349; 4 Stark. on Ev. 768. If the question of the incompeteney of the witness remains as it was at common law, we cannot affirm, upon the record before us, that the court erred in permitting the witness to testify. The incompeteney of the witness, in such case, depends altogether upon the fact of the agent’s liability to the principal. The conduct of the agent must, therefore, have been wrongful in reference to the principal, as well as to the injured person. It may have been such as to have rendered the principal liable, without involving any Breach of duty on the part of the agent or pilot to the principal. An example -would be presented, if an agent should act wrongfully with the consent of his employer. — Barnes v. Cole & Fitzhugh, 21 Wend. 188 ; Noble v. Paddock, 19 Wend. 456; Juniata Bank v. Beale, 1 W. & S. (Pa.) 227; Stewart v. Kip, 5 J. R. 256; Smith v. Seward, 3 Barr, 342; Hawkins v. Finlayson, 3 C. & P. 305; Whitmore v. Waterhouse, 4 ib. 383. The competency of pérsons, not parties to the record, is presumed until the contrary appears, and the onus is upon the objector to show the incompeteney. It is not enough that a mere probability of incompeteney should be raised; the facts upon which it depends must be faii’ly established, as must the affirmative of every issue of fact in judicial proceedings. — Rives v. Plank-Road Company, 30 Ala. 92. It devolved upon the defendant to establish, that the very act or acts of negligence, which constituted the gravamen of his action, gave rise to- a cause of action by the plaintiff against the pilot. This does not appear from the bill of exceptions to have been done. The causes of the plaintiff’s damage are not traced to a misfeasance or malfeasance of the pilot in reference to the master, if there was improper delay, or if there was imprudence in lashing two boats together, it would be quite as reasonable to attribute those wrongs to the master, (who may have been upon the. boats, foaught that is disclosed by the record,) as to the pilot. If it be said that the testimony shows that the stranding [175] of the boat was attributable to the pilot, a satisfactory reply is, that it does not appear that the stranding -was the cause of the injury complained of. The judgment of the court .below is affirmed.