Southern Ry. Co. v. Leard

DENSON, J. After demurrer was sustained to the complaint and leave granted the plaintiff to amend, she allowed an entire term of the court to pass without making an amendment or offering to amend the complaint. At the term of the court following that at which the demurrer was sustained the cause was continued generally and at the next term the complaint was amended. “The practice is settled by numerous decisions of this court, that if there be not some positive intervention or direction on the part of a plaintiff the neglect of the clerk to docket a cause, and the failure to take orders therein for several terms, will not operate a discontinuance, unless the lapse of time .is so great that a presumption of payment or extinguishment would arise.” (Italics ours). — Malone & Foote v. Marriott, 64 Ala. 486, and cases there cited; Ex parte State, 71 Ala. 368. Applying the rule above enunciated to the facts of this case, it i® clear that the insistence of the appellant that the cause was discontinued is untenable. Moreover, the cause was continued at the spring term, 1902, witljout objection on the part of the defendant. The advantage of a discontinuance must he claimed at the earliest period, — Hayes v. Dunn, 136 Ala. 528, 34 South. 944, and authorities there cited. The action is case by the plaintiff, Evelyn Leard, against the defendant, Southern Railway Company, to recover damages alleged to have been sustained by the plaintiff on account of the alleged negligent placing of two double bento of a bridge of the defendant in the channel of Ohilatchie creek causing the creek to overflow plainti ff’s lands. It is averred in the complaint, that the plaintiff owned a large tract of land through which [he Ohilatchie creek flowed., the creek being the line betweeu the counties of Wilcox and Dallas, and plaintiff’s lands being located partly in Wilcox and partly in Dallas county. The lands are particularly described by the government subdivision of sections and the averments in the complaint show the subdivisions described are contiguous and when taken together form a compact tract. It is shown by the averments of the complaint that the — 357 — defendant’s road runs through said tract of Laud and crosses Cbllatchie-creek. The defendant for its use in operating its road erected a bridge over said creek. After aveiring that the- defendant operates a railroad over and across the said Ohilatchie creek and over and across the afore described lands of plaintiff, the averment of the complaint with respect to the place where the bridge was erected is in this language: “Which said bridge is builded across said creek on lands formerly owned by plaintiff,.and which are now used by the defendant as a road-bed for the operation of its aforesaid railroad. Then immediately follows this averment: “Plaintiff avers that the said bridge- Luildrd by the defendant on her said lands, and over the said Ohilatchie creek, is the first bridge owned by the defendant north of Alberta, Alabama, and is knoAvn as “Sixteen Eight.” It is also aA'eried in the complaint that the plain! iff is the owner of the lands, “both above and below the bridge bnilded hv tin- (L fondant as aforesad ” Construing the averments of the complaint together,Ave think the OAvneivhip of the lands in the plaintiff and the location of the bridge are shown with sufficient certainty. It Avas not indispensable that the complaint should have pointed out the particular forty acres that were damaged, the complaint, hoAvever, is certain to a. common intent in this respect, Avhen it describes -the land damaged as, “all that part of plaintiff’s land lying along the hanks of said creek and adjacent to the said bridge of defendant “Sixteen Eight.” The damages recoverable under the complaint, as last amended, Avc-re recoverable under the original complaint, and the cause of the injury averred is the same, hence the doctrine of departure insisted upon by the defendant in its motion to strike and in its demurrer, has no application. The averments of negligence in placing the bents in the channel of the stream are sufficient- under our liberal system of pleading. The defendant pleaded the general issue and seven special pleas, demurrers Avere sustained to all of the spec — 358 — ial pleas and the cause was tried on issue joined on the plea of the general issue. It is. sufficient to say of the assignments of error with respect of the ruling of the court, on the demurrer to pleas 2, 4 and 5 that, conceding that the matter [herein pleaded,.was good as a defense to the cause of action, and that the pleas were sufficient in form, the defense could have been made under the plea of the general issue. Hence, if the court, erred in sustaining the demurrers it was error without injury to the defendant. — Louisville & Nashville Railroad Company v. Hall, 131 Ala. 161, 32 South. 603; L. & N. R. R. Co. v. Davis, 91 Ala. 487, 8 South. 552. Plea six was subject to the demurrer and the court properly sustained it. The demurrer to the 7th plea, which presented the statute of limitations, was properly sustained. The plaintiff’s cause of action, as shown by the complaint, accrued within a year previous to the date of the filing of the complaint, and there is no averment in the plea that it accrued earlier. — S. A. & M. R. R. Co. v. Burford, 106 Ala. 303, 17 South. 395. The pica as is shown by the appellant’s brief, was filed upon the theory that the complaint filed in November presented a new cause of action and was not amendatory of the original complaint. The complaint filed in November, 1902, must be treated as an amendment and was made obviously for the purpose of meeting the demurrer with respect to the lack of any averment of negligence in the original complaint ; it did not present a new cause of action, and was within the Us pendas. — Winston v. Mitchell, 93 Ala. 554, 9 South. 551; Chambers v. Talladega Real Estate & Loan Association, 126 Ala. 296, 28 South. 636; Mayfield’s Dig. p. 92. subdiv. 25. The 8th plea is in this language: “And for further answer to said .complaint filed on the 7th day of November, 1902, the plaintiff contributed to the injury complained of by placing within the path of said Chiiatchie creek above said bridge, logs, brush and saplings which in high water were washed down said creek, and caused the damage complained of in her said complaint.” — 359 — We think the plea ivas not subject to the demurrer made to it on any of the grounds assigned and the demurrer should have been overruled. — Lillie v. Fletcher, 81 Ala. 234, 1 South. 273. The evident purpose of the attempt to show that the lease held by Yoltz of the lands ivas transferred to T. S. Leard, was, that T. S. Leard had the possessory interest in the lands for the year 1901, and, therefore, that the title to the crops for 1901, was in him, and not in the plaintiff. Thus the transfer of the lease was not collateral matter but had direct -bearing on plaintiff’s title and the written transfer was the best evidence of the fact. Witness Leard on cross-examination, without objection had once answered that the Yoltz lease included the land for 3901, hence, there was no injury to the defendant in the court not allowing him to answer the question calling for that answer again. Wiiness Leard, husband of the plaintiff, had testified that he attended to the lands as agent of his wife and that he took charge in January, 1901; the deed in evidence placed the title in the wife, the husband’s possession was the possession of the wife and it was immaterial how many times the wife went on the land in 1901, or whether she went on it at all, he had not testified that she- went on it at any time. The court did not err in refusing to allow the witness to answer the question: “How many times did your wife go on the land in 1901?” It was also wholly immaterial whether Leard was paid wages by his wife or not. It- was not competent to show that the husband of the plaintiff listed the lands, for taxes in his own name, especially in the absence of any offer to show that it was done with knowledge of the plaintiff. And the court did not err in declining to allow such proof to be made by the defendant. But the record shows that subsequent to tire ruling of the court declining to allow the defendant to malee such proof by the witness Leard, the defendant without objection offered in evidence the tax assess: ment list for 1901 and 1902, which showed that the lands were assessed in the name of the husband, T. S. — 360 — Leard, at $1,000.00. So the defendant received the benefit it sought. If it was competent to prove the price at which the husband of plaintiff assessed the lands in the year 1900, and the year 1901, the tax books were the best evidence of the fact, and the court properly sustained plaintiff’s objection to the question asked Avitness Leard calling for parol evidence of the fact. — Doe ex dem. etc. v. Edmondson, 37 So. Rep. 424. Whether or not there was a. mortgage on the land in 1901, Avas patently irrelevant, it could in no aaúsp have affected the plaintiff’s right to recovery against the defendant that did not connect or offer to connect itself with the mortgage. — Allen v. Kellam, 69 Ala. 442, and authorities there cited. The Avitness Doak, who had given material evidence for the plaintiff Avas asked on cross-examination the question: “Have you not a mortgage on this land of Mrs. Leard?” It is insisted by the appellant that if the witness held a mortgage on the land it affected his interest in the suit, such as Avould have tended to show a discrediting bias. It is elementary, that the interest of a witness in the result of a suit may be shown, but the fact that the Avitness held a mortgage, on the land did not, prima facie, tend to sIioav that he was interested in the result of the suit, the suit not being to recover the land but for damages to it. .As mortgagee he would not have had title or claim to the recovery, nor Avas it made to appear that his mortgage security would have been affected by the success or failure of the plaintiff in the suit. We think the court properly sustained the objection to the question. At the time the.Avitness Mosheir was asked by the defendant to state how Corcelius’ survey compared with his; (if we take the evidence in the order in which it appears in the bill of exceptions), it had not been shown that the Avitness and Corcelius were, civil engineers of “large experience,” as is argued in appellant’s brief, nor that maps or blue prints were made by them nor that the maps Avere before the jury as evidence. At the time the — 361 — question was asked the evidence had only shown that Mosheir and Corcelins were assistant engineers of the defendant (civil engineers, we assume, though the hill of exceptions shows it only inferentially), the extent of their experience or that they had any experience had not been shown. Mosheir testified that he made his profile on the 4th of November, 1902, a.nd that Corcelins made one in 1901, he also testified that he had Corcelins’ purvey with him at the time he made his. Neither map nor profile had been exhibited to the jury, no testimony as to the contents of either, or that they were correct had been given. Under these conditions it is clear that the court did not err in sustaining plaintiff’s objection to the question. The witness Mosheir was subsequently shown to be an expert bridge builder of several years experience and ivas also sboAvn to have accurate knoAvledge of the locality where the bridge Avas constructed. In aocav of the averments of the complaint with respect of the change made in the channel of the creek by the placing of the double bents in the creek from Avhat it was Avhile the single bents were there, the court erred in excluding the testimony of this witness, “that there Avordd be more obstruction with four single bents than A\ith two double bents.” The bill of exceptions shows that the witness Davis after testifying that he Avas Avith Cornelius when he made his profile of the bridge in 1901, and of the ground and creek, testified that Corcelins’ map, shown him on the witness stand, Avas correct. Then MIoavs this recital: “Map was .offered and admitted as eAÚdence.” Subsequently the plaintiff moved to exclude the map, the court overruled the motion but limited the map as evidence to distances and measurements. Exception was reserved by the defendant to this action of the court. The map is not set out in the bill of exceptions nor is it in any way a part of the bill. True, there is a blue print map loose in the record which has a certificate of the clerk attached to it to the effect that it is the original blue print map that was offered in evidence and the one that the clerk was ordered to send up to the supreme court. — 362 — The certificate cannot malee it a part of the bill of exceptions. — Rule of Practice No. 27, Code, p. 1191, does not authorize the omission from the transcript of original paper,* or documents that have been ordered sent up under its provisions. “They should be copied there, in all cases, whore they constitute material testimony, whether the originals are transmitted to the appellate court or not.” We cannot in the condition we find the bill of exceptions with regard to the matter, consider the assignment of error based upon it. — Pruitt v. McWhorter, 74 Ala. 315; Wright v. Dunklin 83 Ala. 317, 3 South. 597; Black v. Pate, 136 Ala. 514, 34 South. 844. Furthermore, we deem it not at all certain that there is shown an order of the judge such as is required by Rule 27 of Practice. — Frieder v. Goodman Mfg. Co., 101 Ala. 242, 13 South. 423; Gardner v. State, 96 Ala. 12, 11 South. 402. The action oí the court in overruling defendant’s motion to exclude a portion of witness Shill’s evidence may be justified upon the proposition, that the motion came too late. — Billingslea's case, 96 Ala. 126, 11 South. 409; McCollum’s cane, 96 Ala. 98, 11 South. 408; Payne v. Long, 121 Ala. 385, 25 South. 780. Furthermore it does not appear that the evidence was evoked on cross-examination ; if drawn out by defendant, it had no right to have it excluded. Charges C and D refused to the defendant, were misleading in their tendencies and possessed the vice of pretermitting consideration of the tendency of the evidence showing that T. S. Leard was in possession and control of the land during the year 1901, as the agent of his wife. Charges A and 3 (general affirmative charges) refused to defendant, it is argued, should have been given on the theory, that the deed offered by the plaintiff to show title in tier excepts from its operation two forties of the land therein described and twelve acres besides; that the evidence did not show precisely on what part of the land the damage was done and that it might have been on the excepted parts. In other words, that the burden of proof was on the plaintiff to ¡show that the damage was on her — 363 — lands and there was no evidence from which the jury could Lave reasonably inferred that any damage was done to plaintiff's lands. It is true that the land excepted in the deed is embraced in the complaint. T. S. Leard testified, however, that forty or fifty acres of the plaintiff’s land were overflowed by the freshet and that it was damaged to the extent of $200.00 or $250.00. With this evidence before the jury the charges were properly refused. Charge 9, refused to the defendant, is 'founded upon the abstract principle stated in the opening sentence of the opinion of this court in the case of Southern Ry. Co. v. Plelt, 131 Ala. 312, 31 South. 33. The charge fails to negative negligence on the part of the defendant, and, besides, it assumed that the freshet Was one of which the usual course of nature afforded no premonition. _ It ivas properly refused. — Gulf Red Cedar Co. v. Walker, 131 Ala. 553, 31 South. 374; Fordham v. Northern Pacific Ry. Co., 66 L. R. A. 556, 104 Am. St. Rep. 729. Aside from the fact that there was no conflict in the evidence with respect of the plaintiff’s title to the land, charge G, refused to the defendant, asserted an unsound proposition. If the plaintiff was in actual, peaceable, possession under claim of ownership or color of title, it was sufficient so far as her right of recovery against the defendant in this action was concerned. For the 'errors pointed out, the judgment of the circuit court must be reversed and the cause remanded. Reversed and remanded. Haralson, Tyson, Dowdell and Simpson, J.J., concur.