Alabama Great Southern Railroad v. Loveman Compress Co.

ANDERSON, C. J. (1) Defendant’s plea 8 is such a plea in abatement as is required to be verified by section 5332 of the Code of 1907, and was demurred to because not verified, and the trial court did not err in sustaining the demurrer. It might be that it could have been stricken on this account, but it could also have been eradicated by a demurrer. — Moore Bros. v. Cowan, 173 Ala. 536, 55 South. 903. (2) The only ground of objection to the evidence of the witness Barnes as to the value of the compress was that “he was not shown to be an expert in the valuation of property of this kind.”. A nonexpert can give an opinion as to value. — Southern R. R. v. Morris, 143 Ala. 628, 51 South. 308; Vandegrift v. State, 151 Ala. 105, 43 South. 852. (3) There was no error in sustaining the plaintiff’s objection to the questions to the witness Hester as to the amount of insurance on the compress, as the answer to same could not properly tend to establish the value of said compress. (4, 5) The defendant set up as a special defense an indemnity against liability for the negligent destruction of the property, arising out of a contract or lease between it and the plaintiff, whereby the defendant was to be held harmless for the things now complained of in consideration of the use of a part of its right of way by the plaintiff in connection with its compress business. The court did not hold that the said indemnity clause was void as being contrary to public policy, but affirmatively eliminated this defense because the same was ultra vires as to [687] the plaintiff corporation. Hence the case of A. G. S. R. R. Co. v. Demoville, 167 Ala. 292, 52 South. 406, has no application to the powers of this plaintiff, under its charter, as it deals only with the validity vel non of such contracts with reference to public-policy, and, as above stated, the contract in question was not condemned as being violative of public policy, but because ultra vires the plaintiff corporation. The plaintiff’s charter was introduced in evidence, and while it gives general powers as to the things therein enumerated, including the right to buy, sell, and hold real estate, and which would include the right to lease the same, there is nothing in the charter expressly or by necessary implication that would authorize it to indemnify the defendant against its negligence and willful and wanton misconduct as provided in the clause of the lease relied upon by the defendant. We therefore think that the trial court properly ruled, in the oral charge and by giving and refusing certain special charges, that the clause in question was not binding upon the plaintiff.— Steiner & Lobman v. Steiner & Co., 120 Ala. 128, 26 South. 494, and cases there cited; Gulf Yellow Pine Co. v. Chapman & Co., 159 Ala. 444, 48 South. 662. It is contended by appellant’s counsel that, even if the thing contracted for was ultra vires the cor-, poration, it could have been ratified by the action or acquiescence for several years of the stockholders, and we are cited to the case of Jordan & Co. v. Collins & Co., 107 Ala. 572, 18 South. 137. This contention finds support in an expression in said Jordan Case, supra, but this expression was pronounced dictum in the well-considered opinion in the Steiner Case, supra, wherein the true rule was announced, in effect, as follows: The stockholders may,, by ratification, render binding acts done which are within the powers of the corporation, but ultra vires its officers, or of a mere majority of its stockholders, but they cannot ratify acts ultra vires the corporation. We do not think that the case of Morgan v. Donovan, 58 Ala. 241, supports in point, or by analogy, the charter power of the plaintiff to guarantee the indemnity provided in the lease contract. (6-8) The fifth proposition, as insisted upon in brief of appellant’s counsel, groups defendant’s refused charges 1, 3, 5, 9, and 24. We do not think that count 2 of the complaint in the case at bar is similar to count 1, discussed in the opinion in the case of Tinney v. Central of Ga. R. R. Co., 129 Ala. 523, 30 South. 623. There the negligence charged as causing the fire was in the [688] operation of the train, and as the fire may have been caused as a result of the defective equipment or construction of same, proof of the fire by the locomotive did not make out a prima facie case under a charge of but one of the alternative causes, for the fire may have resulted from the cause not charged. That is the defect in the equipment or construction. Here count 2 is much broader than the one discussed in the Tinney Case. It charges that the servants and agents, etc., “negligently set fire to and destroyed” the property, etc. This count was broad enough to cover a negligent burning, whether resulting from the operation and handling of the locomotive or from a defective construction or equipment of same, and proof that the fire was caused by sparks from said locomotive make out a prima facie case for the plaintiff, and cast the burden upon the defendant of overcoming this presumption by proving, not only a proper equipment and construction of the locomotive, but that it was properly and skillfully operated, and it was a question for the jury, both as to the origin of the fire as well as the equipment, construction, and operation of the locomotive. It is sufficient to say that the trial court committed no reversible error in refusing these charges, or any of them. Counsel do not discuss them separately, and we do not therefore deem it necessary to point out the infirmities of each of them separately and severally. (9) There was no error in refusing charge 8, requested by the defendant. If not' otherwise bad, it was argumentative, and ignores other facts tending to show that the train set fire to the compress. — McCary v. A. G. S. R. R. Co., 182 Ala. 597, 62 South. 18. The expression in the case of Southern R. R. Co. v. Dickens, 161 Ala. 144, 49 South. 768, somewhat similar to this charge, is no doubt sound, but every expression in an opinion does not mean that it can properly be embodied in a written charge. Moreover, the charge in question pretermits from the facts thereby hypothesized the words “without more,” as used in the opinion in the Dickens Case, supra. (10, 11) Charge 4, refused defendant, is perhaps subject to several points of criticism, one of which is pretermitting a properly constructed engine. — A. G. S. R. R. Co. v. Davenport, 195 Ala. 368, 70 South. 674. Moreover, the defendant got the full benefit of this charge in its given charge 6. It would seem that a charge quite similar to defendant’s refused charge 12 was criticised as argumentative and misleading in the case of McCary [689] v. A. G. S. R. R. Co., 182 Ala. 597, 68 South. 18. But if this charge is not subject to the same criticism, its refusal cannot reverse this case, for the reason that the defendant got the full benefit of same under its given charge 14. The judgment of the circuit court is affirmed. Mayfield, Somerville, and Thomas, JJ., concur.