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ed to." So this case rather supports, in- , count 1, and there was no error in overrul. stead of opposes, the present holding. In the ing the demurrer thereto, for the reasons case of Savannah, A. & M. R. R. v. Buford, stated as to said count 1. In upholding 106 Ala. 309, 17 South. 395, the demurrer these counts, however, we do not wish to was not disclosed by the record, and the commend them as models of good pleading, court assumed that the plea, as amended, and repeat that much confusion could have met the defect pointed out by the demurrer. been saved by setting out what the intesIn the case of Western Union Co. v. Craw-tate was doing on the street or track when ford, 110 Ala. 460, 20 South. 111, the court run over or against as well as the nature declined to consider the demurrer, because or character of the track at the point of the record did not set out the complaint the injury. to which it was directed. The record did

[6] Count 4 is bad, and was subject to not disclose with certainty the ruling com- the defendant's demurrer. It does not aver plained of upon the demurrer. In the case that Gillespie (or Dykes) was the agent or of Syson v. Dickenson, 146 Ala. 471, 40 servant of the defendant or that he was South. 753, the record does not show the in charge of or operating the car for the nature of the amendment, but what was defendant, or that the car operated by him said on the subject was gratuitous, for, aft was the defendant's car. The only averment er discussing the question, the writer says: in the count which can connect the defend"Moreover, this ruling is not insisted on as

ant with the wrong in the slightest degree error in argument.” The report of the case is that Gillespie (or Dykes) ran the car upon of Cooley V. U. S. S. Co., 144 Ala. 538, 39 or against the deceased at a certain point South. 515, does not disclose the amend on Nineteenth street where the defendant was ment, but the opinion recites that the repli- operating a street car line and used cars cation was not the same as it was when the drawn or propelled by electricity for the court overruled the demurrer to it, and we transportation of passengers can assume that the amendment was ma: street. It does not even aver that the car

upon said terial, else the court should have considered in question was on its line, as there may the ruling on the demurrer, though not re

have been another street car track at the filed. The case of Harrison v. Ala. Mid. R. said point on Nineteenth street, and Gillespie R. Co., 144 Ala. 246, 40 South. 394, recites (or Dykes) may have been running said car approvingly the rule as laid down in the

on another line on said street for himself or Woods Case, supra, but concludes with this

some company other than defendant. statement: “However, the grounds of the objection to the original pleas were obviat strued most strongly against the pleader, but

[7] A complaint on demurrer must be coned by the amendment." This being true, the demurrers should, of course, have been this rule is not needed to condemn count 4, refiled to the amended pleas. In the case of as it cannot be well construed to charge Western Union Co. v. Louisell, 161 Ala. 231, negligence or a cause of action against this 50 South. 87, the court held that, if the defendant. While our system of pleading is amendment wrought a material change, the most liberal, it does not uphold a complaint demurrers should have been refiled, but de which does not connect the party sued directclined to determine whether or not it was

ly or indirectly with the injury set out. necessary to refile demurrers when the Gordon v. Tenn. Co., 164 Ala. 205, 51 South.

316. amendment to the complaint wrought no material change, preferring to pretermit the

[8] Plea 7 failed to aver that the intestate question, as the case had to be reversed up negligently attempted to cross the track in on other grounds. We have attempted to go front of and in dangerous proximity to the through and discuss all the cases bearing on approaching car and was bad for this reathis question, and, while there is conflict in son, but, if said plea could be construed as the declarations as to the rule, there is lit- meaning that she negligently did so, it would tle, if any, conflict in the actual ruling in be but a duplicate of plea 8, and under said cases, but, in order that there may be which the defendant got the full benefit of less confusion in the future, we hereby mod. plea 7. ify and limit said cases in so far as they [9] The bill of exceptions was signed withmay collide with the rule above enunciated. in the time prescribed by the statute by We therefore hold that the amendment to Judge Senn, judge of the city court, and who counts 2 and 4 only changed the name of the tried the case, and the fact that he was ill motorman, and in no way materially affect- and was not at the time of the signing of ed or obviated the defects attempted to be the bill in the actual discharge of his duties reached by the demurrer, and in this respect as a trial judge, and that a special judge, the amendment wrought no change in said designated under the terms of the act of counts, and the defendant did not waive Loc. Laws 1907, p. 254, was then holding rulings, on its demurrers to the said counts, court in his place, did not invalidate his act by failing to refile its said demurrers after | in signing said bill of exceptions. He was the amendment.

still a judge, and there was no vacancy or Count 2 is substantially the same

this act was merely to provide for an ad-, jury to determine whether or not the intesditional judge to hold court for and dis- tate was guilty of negligence in placing hercharge the duties of the absent regular self in the dangerous position from which judge, and not to curtail or abridge the term she was trying to extricate herself by crossof the incumbent. This court held in the ing over to the second track. Again, it was case of McGhee v. Reynolds, 117 Ala. 413, 23 a question for the jury to determine whethSouth. 68, that the bill of exceptions there er or not she was guilty of negligence in atwas properly signed by Judge Speake, the tempting to cross the track in front of the regular judge, notwithstanding it was signed approaching south-bound car, apart from the during a term of the court which a special question of peril, even if she knew of its judge had been designated to hold and be approach, as there was proof that she was fore the expiration of the tenure of the spe- signaling it to stop, and the jury could infer cial judge. It may be that the two statutes that she had reason to believe that it would are not identical, but their general meaning stop before striking her or else slacken its and purpose is the same, and the Legislature speed so as to enable her to cross before did not intend that the regular judge would being struck. There was also proof of a be so shorn of all his rights and powers as stopping or slackening sign post at this point to deprive parties from getting a bill of ex as well as a custom for cars to stop slackceptions in cases previously tried by him. en their speed before passing each other. The Legislature could probably abolish the [13] Charge 3 is in the abstract correct, office, as it was not created by the Constitu- and there would be no reversible error in tion, but it is doubtful if it could create a giving same upon the next trial. As to vacancy or hiatus in the term, except for whether or not its refusal could be justified grounds provided in the Constitution, and so as to save a reversal of this case, we need Senn was still a judge. Moreover, section not decide as it must be reversed for other 161 of the Constitution merely authorizes the reasons. Legislature to provide for the holding of (14, 15] Charges 5, 6, and 17 each attempt courts when the judge or chancellor fails to to invoke contributory negligence of the attend, and does not contemplate an abridg- intestate in and about crossing the track ment or curtailment of the powers of the as against certain negligence therein hypothregular judge. The motion to strike the billesized. The doctrine of comparative neg. of exceptions is overruled.

ligence does not exist in this state, and if [10] There was no error in refusing charge the plaintiff's negligence, though slight, is 2 requested by the defendant. If not other the proximate cause of injury, he cannot rewise bad, it pretermits knowledge of the ap- cover for the simple antecedent negligence proach of the car.

of the defendant, but the contributory neg(11) Moreover, if correctly framed it would ligence to preclude him must be specially be abstract and misleading under the pecu- pleaded, and it is only such negligence as is liar facts of the case. The intestate was in pleaded that can defeat a recovery, and not imminent peril from the approach of the some proximate contributory negligence not north-bound car, and was endeavoring to specially pleaded. Sloss Co. v. Hutchinson, avoid being run over by it, and in a mad 144 Ala. 221, 40 South. 114; So. R. R. Co. rush for safety was not, as matter of law, v. Shelton, 136 Ala. 191, 34 South. 194; Ala. guilty of negligence in attempting to cross Mid. R. R. Co. v. Johnson, 123 Ala. 197, 26 the next track, the one upon which she was South. 160; Birmingham v. City Stable Co., struck.

119 Ala. 615, 24 South. 558, 72 Am. St. Rep. [12] As a rule, one who suddenly acts 955; A. G. S. R. R. Co. v. McWhorter, 156 wildly and madly, when unwarned peril | Ala. 269, 47 South. 84. The case of Birmsurrounds him, is not as matter of law ingham R. R. Co. v. Bynum, 139 Ala. 389, chargeable with contributory negligence for 36 South. 736, seems to be opposed to this failing to exercise the obligations of care doctrine or the court evidently overlooked and prudence imposed upon a prudent man the fact that charge 5 in said case did under normal and ordinary conditions as not hypothesize the contributory negligence instinct would prompt him to use diligence pleaded in. reversing said case for the reto save his life or insure his safety, and the fusal of said charge 5, but it is unnecessary law wisely leaves it to the jury to determine to expressly overrule said case at the preswhether or not his conduct under such cir- ent time for charges 5, 6, and 17 can be cumstances amounts to negligence. L. & N. condemned for other reasons, even if we R. R. Co. v. Thornton, 117 Ala. 282, 23 concede that they hypothesized the DegliSouth. 778; R. & D. R. R. CO. V. Farmer, 97 gence as pleaded, to wit, in and about crossAla. 141, 12 South. 86. Of course, this rule ing the track. Sloss Co. v. Hutchinson, does not obtain and cannot be invoked by supra. one who wrongfully and voluntarily puts [16] Charge 5 if not otherwise bad, its rehimself in such a dangerous position. Mc- fusal can be justified for being abstract as Cauley v. Tenn. Co., 93 Ala. 357, 9 South. to the failure to keep a lookout as the motor

without dispute that he saw the intestate / ment of the city court is reversed, and the while in the center of the north track, and cause is remanded. before she came on his track.

Reversed and remanded. [17] Nor did the intestate's negligence relieve him of sounding the gong after he

DOWDELL, C. J., and SIMPSON, MCsaw her on the track, and in this respect CLELLAN, MAYFIELD, SAYRE, and SOMthe charge fails to take account of subse- ERVILLE, JJ., concur. quent negligence. [18] Charge 6 fails to take into account

(174 Ala. 145) any subsequent negligence as mere negli

MCINTOSH v. WINDHAM. gence can include subsequent negligence, and the charge could have misled the jury to be- (Supreme Court of Alabama. Nov. 30, 1911.) lieve that the plaintiff could not recover 1. EJECTMENT (8 110*)-INSTRUCTIONS-NO

TICE OF DEED. for subsequent negligence if the intestate

In ejectment, an instruction that if a forwas guilty of negligence in attempting to mer owner executed a deed to defendant, decross the track. The criticism of the first livering it to a third person for delivery to depart of charge 5 fully covers charge 17.

fendant, defendant must recover, was properly [19] There was no error in refusing charge tice of the deed; the evidence being conflict.

refused as not requiring that plaintiff have no8, requested by the defendant. This charge, ing as to whether defendant was in possession in effect, pretermits plaintiff's right to re- when plaintiff received his deed. cover for subsequent negligence as set forth

[Ed. Note.-For other cases, see Ejectment,

Dec. Dig. § 110.*] in count 5, if the intestate was guilty of the slightest negligence such as is pleaded, when 2. CHAMPERTY AND MAINTENANCE (8 7*)

GRANTS OF LANDS HELD ADVERSELY. as a matter of fact there was no plea setting Under Code 1907, § 3839, a conveyance of up negligence on the part of the intestate land which, at the time the deed is executed, subsequent to or concurrent with the neg- is in possession of one holding adversely to ligence set forth in said count 5. In other claiming to be in rightful possession thereof,

the grantor, exercising acts of ownership and words, the charge instructed a finding for though having no color of title, is void as to the defendant except for a wanton or will such possessor and will not support ejectment

by the grantee. ful injury upon proof of defendant's pleas

[Ed. Note.-For other cases, see Champerty of contributory negligence, when none of and Maintenance, Cent. Dig. $3 54-110; Dec. them answered count 5, which charges sub-Dig. $ 7.*] sequent negligence. The demurrers were sus- 3. EJECTMENT (8 90*)-EVIDENCE-ADMISSItained to these special pleas as to count 5, BILITY. yet the charge requests a finding for the

In ejectment, plaintiff was properly perdefendant upon proof of pleas, which did sold timber for a certain amount and sent pro

mitted to show by defendant that defendant not go to said count, and notwithstanding the ceeds to one H. to corroborate testimony of said count may have been proved. Nor do H. that the timber was sold for him under an we wish to be understood as indorsing the agreement testified to by him. form of the charge in referring the inspec- Dec. Dig. g 90.*]

[Ed. Note.-For other cases, see Ejectment, tion of the pleas to the jury.

4. EJECTMENT (8 64*) — COMPLAINT-SUFFI[20] Charges should hypothesize the facts CIENCY-DESCRIPTION OF LAND. relied upon as a defense, and not require the A complaint in ejectment sufficiently dejury to examine and consider the pleas in scribed the land to warrant recovery, where it order to determine what is meant, by said it as beginning at a definite corner, and further

gave the length and width of the tract, located charges. A. G. S. R. R. Co. v. McWhorter, identified it as land being cultivated by a speci156 Ala. 269, 47 South. 84.

fied person. [21] Charge 9 is also faulty for seeking to cent. Dig. ss 158-164; Dec. Dig. $ 64.*]

[Ed. Note.-For other cases, see Ejectment, defeat plaintiff's right to recover for subsequent negligence upon proof of the de Appeal from Circuit Court, Coffee County; fendant's special pleas. True, the charge H. A. Pearce, Judge. says you cannot award damages for any

Ejectment by H. A. Windham against Dan “mere” negligence on the part of defendant's McIntosh. Judgment for plaintiff, and de servants, but the word “mere” cannot be con- fendant appeals. Reversed and remanded. strued as meaning only initial negligence, The following charges were requested by but is broad enough to mislead the jury to defendant and refused. (2) "If the jury are the belief that the plaintiff could not recover reasonably satisfied from all the evidence for any sort of negligence upon proof of that Holloway executed a deed to the land defendant's special pleas.

in controversy to Dan McIntosh, and deliv. [22] The plaintiff amended his complaintered the deed to C. W. Baston for him to deby striking out count 9, as well as others, liver to McIntosh, and that was the agreebefore the case was submitted to the jury, ment of the parties, then the verdict must be and the court did not err in refusing de for the defendant." (3) "I charge you, gen. fendant's requested charge 11.

tlemen of the jury, that a conveyance of land For the error above suggested, the judg- , which at the time of execution of the deed

is in possession of one holding adversely to ly, or as tenant of his brother, who states the grantor, and exercising acts of owner that he never claimed to own the land, but ship, and claiming to be in rightful posses-only told his brother he could occupy it. sion, though having no color of title, is void [1] There was no error in the refusal to as to the persons holding adversely, and will give charge 2, requested by the defendant. not support an action of ejectment by the It does not hypothesize that the plaintiff had grantee against such adverse holding." any notice of the deed which purports to

The third assignment of error is as fol. have been made to Dan McIntosh, and, as lows: “In overruling defendant's objection to the evidence is in conflict as to whether he the following question propounded by plain- was in possession at the time the deed was tiff to defendant: 'Is it not a fact that you made to the plaintiff, it cannot be said to sold the timber for $52.50 ?” Assignment 4: be a matter of law that the plaintiff had no"In not excluding the answer of the witness tice by possession. as follows: 'No, sir; I sold the timber for [2] The court erred in refusing to give $50, and sent $40 to Holloway and kept charge 3. Under the interpretation by this $10.'”

court, of section 3839, Code of 1907 (Grant Charge 1, requested by the defendant and V. Nations, 55 South. 310), said charge states refused, is as follows: General affirmative the law, as applied to the facts of this case; charge to find for the defendant.

the conveyance in question having been made

before the enactment of said section, H. L. Martin, for appellant. C. W. Sim

[3] Referring to the third and fourth asmons, for appellee.

signments of error, there was no error in

overruling the objection to the question and SIMPSON, J. This is a statutory action the motion to exclude the answer as to the of ejectment, by the appellee against the ap- sale of the timber and the disposition of the pellant. The plaintiff proved a chain of con- proceeds, as it tended to corroborate the tesveyances from the government down to him- timony of Joe Holloway that the timber was self, starting with a patent from the United sold for him, under the agreement testified to States to Joseph B. Holloway, dated June 10, by him. 1892, a deed from said Holloway to Snell

[4] There was no error in refusing to give grove & Law, dated January 8, 1906, etc.

charge 1, requested by the defendant. The The defendant introduced evidence for the description in the complaint is sufficiently purpose of showing that, in the spring of definite to warrant a recovery. It gives the 1904, said J. B. Holloway signed and ac-length and the width of the strip, locates it knowledged a deed, conveying the land in

as beginning at the S. E. corner of said N. question to Dan McIntosh, which deed was

W. 14 of N. W. 14, and further identifies it never delivered to said McIntosh, but was

as the strip “now being cultivated by Walter delivered to one Baston, to be delivered to Clemons." said McIntosh, and subsequently was return For the error noted, the judgment of the ed to Holloway, who stated that he would court is reversed, and the cause remanded. deliver it to McIntosh,

Reversed and remanded. All the Justices The claim of the defendant is that the de concur, save DOWDELL, C. J., not sitting. livery to Baston was in accordance with the instructions of McIntosh, and that the de. livery to Baston was really a delivery to Mc

(174 Ala. 259) Intosh, although the deed never actually came into the hands of McIntosh.

KELTON, Judge, et al. v. TAVEL. The evidence is in conflict as to whether (Supreme Court of Alabama. June 29, 1911. there were any numbers of land in the deed Rehearing Denied Dec. 21, 1911.) which was acknowledged before, and left PROHIBITION ($ 3*)-GROUNDS FOR RELIEFwith Baston, and J. B. Holloway, the gran REMEDY IN EQUITY. tor, testified that it was not intended to be

Prohibition, being a remedy only for the delivered as a deed at all, but was signed that only when the fact of its doing so is mat

exceeding by a court of its jurisdiction, and only to enable Dan McIntosh to sell some ter of law, determinable on inspection of the timber for him, and that the $40 subsequent record, will not lie to the probate court to ly paid to him was merely for the timber ings by a railroad corporation to condemn a

prevent its further entertainment of proceedwhich had been sold for him, although he right of way through a dwelling; the court told Dan McIntosh that, if he wanted the having jurisdiction of condemnation proceedland for $100, he could have it, and that said ings, and a corporation regularly organized as McIntosh afterwards told him that he did not such property having proceeded regularly, and

a railroad company with power to condemn wish to take the land at all.

the remedy for any special equity, as that the There is a conflict in the testimony as to organization of the railroad was a fraudulent whether any one was in possession of the attempt, under forms of law, to appropriate land at the time the deed was made to the equity.

the dwelling to a really private use, being in plaintiff, also as to whether, if McIntosh

[Ed. Note.-For other cases, see Prohibition, was in possession, he was holding it adverse- | Cent. Dig. $$ 4-19; Dec. Dig. $ 3.*]


Appeal from Circuit Court, Blount Coun- , suspended if the money be paid into court ty; E. C. Crow, Judge.

and a bond given as required, petitioner's Prohibition by Mrs. Zanie Tavel against dwelling house would be destroyed before John F. Kelton, Judge, and others. From she could prosecute the appeal. an order to show cause, defendant Judge “A prohibition is a remedy against an enappeals. Reversed and rendered.

croachment of jurisdiction, issued only from A. Leo Oberdorfer, for appellant.

A. La- a superior court, is granted on the suggestady, for appellee.

tion that the court to which it is directed

has not the legal cognizance of the cause, SIMPSON, J. This appeal is from an or- and it is directed to the judge of the infeder of the judge of the circuit court for rior court, as well as to the parties in the Jefferson county for a rule nisi to the judge cause”; while an injunction “neither assumes of the probate court for Blount county, to any superiority over the court show cause why a writ of prohibition should denies its jurisdiction, but is granted on the not be issued, prohibiting further prosecu- sole ground that from certain equitable cirtion of certain condemnation proceedings cumstances, of which the court that issues before said probate court. L. K. Moss, C. L. it has cognizance, it is against conscience Moss, and D. H. Brown, incorporators of the for the party to proceed in the cause.” 1 Warrior Mineral Railroad Company, and Spelling on Extraordinary Relief, p. 50, $ 40; John H. Donoho, W. F. Fendley, and Robert 2 Spelling on Extraordinary Relief, p. 1395, Fowler, commissioners appointed by said 8 1716. probate judge, and said Warrior Mineral “The writ of prohibition lies only when Railroad Company, are also made parties the inferior court proposes to exceed its law. and included in said writ.

ful jurisdiction, as to the person or subjectThe petition alleges the incorporation of matter, or in the enforcement of its rulings said Warrior Mineral Railroad Company, in a manner or by a means not intrusted to "setting out in their said alleged certificate its judgment or discretion.” “Injunction of incorporation that they proposed to con

never questions the jurisdiction of the court, struct and operate a railroad for the car

or is addressed to the court; it only lies riage of passengers and freight between Lin- against the parties. Prohibition, on the conton Junction, and a point on the Louisville trary, takes no notice of the parties, ignoring & Nashville Railroad, near the line of Jeffer- for the most part any interest they may son county, Ala., by the nearest, most sat- have in the matter forming the subject-matisfactory, practicable, and feasible route, ter of the grievance, and goes direct against through the S. W. 14 of the S. E. 44 of sec- the court.” 2 Spelling on Extraordinary Retion 5, in township 14 s., range 2 W., to a lief, p. 1396, 88 1716–1718. point in the S. E. 14 of the S. E. 14 of sec

The writ cannot issue for every illegality tion 4, in township 14 S., of range 2 W., and in the proceeding of an inferior court. “But to acquire rolling stock and other personal there is a distinction in this connection beproperty, incident to the operation of a rail-tween the defect of jurisdiction arising in road, and arrogating to themselves thereby pais, and such as are matters of law, and the right to condemn lands for purposes of hence determinable upon inspection of the rights of way." The petition cites certain record. The general rule is that the writ of defects in the certificate of incorporation, probibition will not issue to restrain an insuch as that the termini of the railroad are ferior judge from doing an act when he has not stated; that, while the names of certain prima facie jurisdiction.” 2 Spelling, Extra. parties are given as the officers chosen for Rem. P. 1404, § 1724. the first year, yet it is not shown what par Accordingly, where the Southern Railway ticular office each holds, etc.

Company sought to condemn the tracks of a The gravamen of the petition is that, al- street railway, and the point was made that though said corporation has been formally the statutes do not authorize such jurisdicorganized as a railroad corporation, under tion, it was held that, as the court had juristhe statutes of Alabama, yet that it was not diction "of proceedings for the condemnation organized in good faith to carry passengers of property to public use, it therefore had and freight, but merely as an adjunct to a jurisdiction of the subject-matter," and the certain mining corporation, owned and con- writ was refused. State ex rel. Union Detrolled by the same persons, for the purpose pot Railway Co. V. Southern Railway Co., of evading the statutes of Alabama, under 100 Mo. 59, 61, 13 S. W. 398. which no corporation except a railroad cor “The sounder doctrine, and that sustained poration condemn right of way by the great preponderance of authority, is through the curtilage of a dwelling house, to the effect that prohibition only lies where said line being projected so as to run through the court either lacks Jurisdiction of the the dwelling house of petitioner, and that, subject-matter, or, having jurisdiction, exalthough section 3875 of the Code of 1907 ceeds it in some incidental matter, or in renprovides for an appeal from an order of dering judgment, and no appeal or writ of condemnation, yet, as section 3876 provides error or other remedy is available at all, ar


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