Hood v. Pioneer Mining & Manufacturing Co.

COLEMAN, J. The judgment, in our opinion, must be affirmed for several seasons. The bill of exceptions does not purport to set out all the evidence. It was declared in Griggs v. State, 58 Ala. 425, that “where certain evidence is set out in the bill of exceptions, but it is not expressly stated that it is all the evidence, the appellate court can not hold that the bill of exceptions contains all the evidence.” We have uniformly held to the rule, that unless the bill of exceptions showed that all, or substantially all of the evidence, was set out, this court would presume, in order to sustain the ruling of the lower court, there was other sufficient evidence before the court, not stated in the bill of exceptions. The act to regulate the practice and proceedings in civil cases in the Circuit Court of Jefferson county, and in the Supreme Court on appeal from judgments rendered in said [463] cases (Acts 1888-9, p. 797, § 7), provides, tbat “either party-may, by bill of exceptions, also present on appeal, for review, tbe conclusions and judgment of tbe court upon tbe evidence,” &c. Tbe record fails to disclose tbat there was any exception reserved to tbe conclusion and judgment of tbe court upon tbe evidence. Not having reserved an exception to tbe judgment of tbe court, this court, by tbe terms of tbe statute, is without authority to review tbe correctness of tbe conclusion and judgment of tbe court on appeal. There are exceptions reserved to tbe action of tbe court in excluding certain evidence offered by plaintiff. Tbe complaint distinctly avers tbat plaintiff’s intestate, “while ascending tbe side of tbe car, came in violent contact with a tank which bad been erected too near tbe railroad track to permit tbe body of tbe decedent to pass between tbe same and tbe side of the car.” There is but one countin tbe complaint, and this count distinctly avers tbe cause of action, and clearly states what decedent was doing and bow tbe injury came to be inflicted. Tbe evidence offered, if admissible, tended to prove tbat decedent was standing on a platform between two cars, with bis back toward tbe tank, and extending out but a little beyond tbe sides of tbe cars. This evidence tends to prove a different case from tbat of which tbe defendant was informed by tbe complaint. It was clearly a variance between tbe averment and proof. Plaintiff did not offer to amend bis complaint. — Prior v. L. & N. R. R. Co., 90 Ala. 35; North Birmingham St. R. R. Co. v. Calderwood, 89 Ala. 254. Dying declarations, as such, are inadmissible as evidence in an action of this kind. — 1 Greenl. § 156; Johnson v. State, 50 Ala. 458. Under any view we may take of tbe case as presented in tbe record, there is no error available to appellant on this appeal. Affirmed.