Abraham & Brother v. Nunn

BYRD, J. [1.] In the case of the Ala. & Tenn. Rivers R. R. Co. v. Kidd, 35 Ala. 220, this court held that “ trover will not lie for goods lost or stolen by the negligence of a warehouseman.” To this doctrine we adhere. Hence, trover will not lie where goods are taken by an armed force without any negligence or complicity on the part of the bailee. Construing the charge given by the court with reference to the evidence, we are of opinion that the court committed no error in giving it . — Conner et al. v. Allen et al., 33 Ala. R. 516; Edwards on Bailm. 130; Story on Bailm. §§ 269, 408; Devereux et al. v. Barclay et al.; 2 Barn. & Al. 702 : 9 Bac. Abr. 636. 2. Admitting that the charge may have misled the jury, and that such was its tendency, still, this is not an error for which the cause would be reversed; for the party excepting could have asked of the court a charge which would have explained or qualified the charge given, so as to have obviated its tendency. — Jones v. Fort, 36 Ala. R. 449; Fitzpatrick v. Hays, ib. 684. 3. The appellants insist that the declarations of the United States officers as proven by the witness DeBarde [58] laben, were inadmissible, and that the court erred in permitting them to go to the jury. It is said by the counsel for appellee, with great force, that as the appellants are not entitled to recover in this action under the evidence set out in the record, that the admission of such declarations is, at most, error without injury. But the admission of this evidence was illegal, and being so, it devolves on the appellee to show that the appellants were not injured thereby. In Raines’ Adm'r v. Raines’ Creditors, 30 Ala. 428, this court held that injury will be presumed from the erroneous exclusion of evidence, unless the bill of exceptions sets out all the evidence and shows that no injury could have resulted from the error. The same principle, we conceive, applies to the erroneous admission of illegal evidence when an exception is reserved to the ruling of the court thereon. But we do not hold that this is a universal rule. The bill of exceptions in this case does not purport to set out all the evidence, and the evidence objected to is clearly illegal. In the case of Carlisle v. Tuttle and Wife, 31 Ala. 614, the court held that the erroneous admission of evidence by the probate court is not a reversible error, where the bill of exceptions, setting out all the evidence, shows ■ enough to sustain the decree of the court. So where there is such an error committed in a trial by jury, it would seem to follow that, to obviate a reversal, all the evidence should be set out and show that no injury resulted to the party excepting. The rule is laid down somewhat more stringently in the case of Shield & Walker v. Henry & Mott, 31 Ala. 53. In Green v. Allen, administrator, 32 ib. 220, it does not appear that all the evidence was set out in the bill of exceptions, yet the court held the evidence admitted could not possibly have injured the party excepting. This case may, perhaps, be considered one of the exceptions to the general rule above laid down. In Buford v. Gould, 35 ib. 268, it is held that an erroneous ruling will be presumed injurious, unless the bill of exceptions affirmatively shows that such error worked no injury. In that case it appears the court refused to suppress certain depositions, and an exception was taken. But the bill of exceptions did not show that the deposi [59] tions were offered as evidence or were not so offered; and the court reversed the cause on this exception. In Moseley v. Mastin, 37 ib. 216, it was said in the opinion that the court below “ erred in sustaining specific objections which were made; and we cannot affirm that it was error without injury, because there was another objection which might have been made, and which, if made, might have been obviated.” See, also, Murphree v. Singleton, 37 ib. 412. In Stephens v. Broadnax et al., 5 Ala. 258, it was held that where it is stated in the bill of exception that a charge was prayed upon certain evidence, it will not be intended, in order to legalize the ruling of the court, that other evidence was introduced which would render it legal; and being illegal the law presumes injury, and it will not be intended in order to rebut the presumption of injury that other evidence was adduced which would have done so; nor, on the other hand, can we say no injury resulted, unless all the evidence had been set out in the bill of exceptions, although we might be satisfied that no injury resulted, if we were allowed to look alone to the evidence that is set out. There may be cases supposed, and some have been adjudicated in which a court could clearly see that no injury resulted from the introduction of illegal evidence without the bill of exceptions disclosing or having disclosed all the evidence introduced on the trial. From the decisions of this court, the true rule seems to be that where illegal evidence is admitted in opposition to the objection of the party against whom it is offered, it is a reversible error, unless it clearly appears from the record that no injury resulted 'to the party excepting. And, as a general rule, the court will reverse in such a case, unless all the evidence is set out in the bill of exceptions. It is not sufficient for the purpose of an affirmance in this case, that upon the evidence set out we cannot see any injury which resulted to the appellant from the admission of the declarations of the officers of the United States, but we should be able to see clearly that no injury resulted, which we are unable to do in the condition of [60] this record. Hence, the judgment is reversed and the cause remanded. Judge, J., not sitting.