Opinion
8 Div. 558.
April 26, 1923.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Street Bradford, of Guntersville, for appellant.
Count 10 was demurrable, in not averring that defendant's failure to transport was wrongful. Mott v. Jackson, 172 Ala. 448, 55 So. 528. Any part of the conversation between the plaintiff and Whitaker, Wilkey and McKee, the two latter being dead, was inadmissible. Code, § 4007; Louis' Adm'r v. Easton, 50 Ala. 470; Boykin v. Smith, 65 Ala. 294; Dismukes v. Tolson, 67 Ala. 386; Miller v. Cannon, 84 Ala. 59, 4 So. 204; Wood v. Brewer, 73 Ala. 259; German v. Brown, 145 Ala. 364, 39 So. 742. The magnitude of the cross-tie business along defendant's route was material, as showing whether there was more business than defendant could handle. Tenn. River Nav. Co. v. Walls, 18 Ala. App. 305, 92 So. 202; 10 C. J. 66. Because of the improper argument of counsel for plaintiff a mistrial should have been entered. Birmingham Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; Florence Cotton Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Tannehill v. State, 159 Ala. 52, 48 So. 662; East. Tenn. Co. v. Carloss, 77 Ala. 443.
John A. Lusk Son, of Guntersville, for appellee.
Counts 10 and 12 were in Code form and the breach of duty clearly appeared. Tenn. River Nav. Co. v. Walls, 18 Ala. App. 305, 92 So. 202. The death of a mere bystander does not render evidence inadmissible. Code, § 4007. Whatever effect the improper argument may have had on the jury was removed by the prompt action of the court. Sup. Lodge, etc., v. Gustin, 202 Ala. 246, 80 So. 84; B. R., L. P. Co. v. Sloan, 199 Ala. 268, 74 So. 359; L. N. R. Co. v. King, 198 Ala. 168, 73 So. 456.
The charge of the court shows the trial was had on counts 10, 11, and 12; other counts being withdrawn by plaintiff's counsel. Assignments of error challenge the action of the court in overruling demurrer to said counts. Appellant's counsel state they shall confine their "attention" to the rulings on demurrer to counts 10 and 12. This was a waiver of other assignments based on rulings as to count 11. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.
This is the third appeal. Tennessee River Nav. Co. v. Walls, 204 Ala. 285, 85 So. 711; Id., 18 Ala. App. 305, 92 So. 202. On last appeal counts 10 and 12 were before the Court of Appeals, and held not subject to the grounds of demurrer interposed. The decision therein does not appear to have been brought to this court by certiorari for review. The circuit court followed that decision on the last trial. However, we have considered the grounds of demurrer assigned to counts 10 and 12, summarized as follows: (1) Because the facts averred showed no duty by defendant; (2) it is not averred that defendant, by the exercise of reasonable diligence, could have transported the ties; and (3) it is not averred that defendant was guilty in not transporting the ties. The counts were based "upon a breach of the implied contract" of a common carrier to accept and transport the goods and material described (Mott v. Jackson, 172 Ala. 448, 55 So. 528), and they are sufficient under the statute (Code 1907, §§ 5520, 5549; Tennessee River Nav. Co. v. Walls, supra).
The plaintiff testified that he had "about" the number of ties indicated; that he was giving "his recollection" of the number at each landing; that he "had taken the ties up (and paid for them)," and had refreshed his recollection by inquiring of the persons of whom he bought the ties at the several landings named, and from "some checks he had which he had issued for the ties and from his personal recollection he had given the figures above mentioned." There was no error in overruling defendant's motion to exclude the testimony tending to show the number of cross-ties at the several landings. Tennessee River Nav. Co. v. Walls, 204 Ala. App. 285, 92 So. 202, 205; Holmes v. Gayle, 1 Ala. 517; Hamilton v. Cranford Merc. Co., 201 Ala. 403, 78 So. 401.
The conversation with Mr. Whitaker, captain of one of defendant's boats on said line, was not for the purpose of showing that there was a special contract made with him for the transportation of the "ties," but as tending to fix notice on defendant of such shipment or the desire to ship, and to establish the reasonable cost of the transportation as affecting the damages sustained by failure of defendant to transport the same. The evidence was not forbidden by section 4007 of the Code of 1907.
Plaintiff, having testified that he was to "load and unload the ties on the barge, but not on the boats," was properly permitted to testify that he was "ready to load and unload them" on the barge. His statement was of fact, and not a conclusion of the witness. Birmingham Ledger Co. v. Buchanan, 10 Ala. App. 527, 537, 65 So. 667; Robinson Co. v. Greene, 148 Ala. 434, 43 So. 797.
The extent of the cross-tie traffic, or the number of men employed on the Tennessee river between Chattanooga and Decatur "in the spring of 1917" in that enterprise or business, was immaterial to the inquiry. It was not offered to show how such fact entered into or affected the implied contract relation or duties of the instant parties — a common carrier by navigation and one of the public entitled to service.
The oral charge, when considered as a whole, was without error as to parts to which exception was reserved. Tennessee River Nav. Co. v. Walls, 18 Ala. App. 305, 92 So. 202, 205 (5, 7). Nor was there error in refusing defendant's charges 1 and 10. There was no issue of pleading that defendant discriminated against plaintiff in the carriage of freight. Charge 25 was misleading. Charge 26 is what is called a "no evidence charge." Defendant's witness Whitaker testified that plaintiff told him to pick up the ties; that defendant company was loading and unloading from its boat freight "at every landing" "and took everything offered him, if the boat could carry it."
Charges 9 and 12 were contrary to the ruling on last appeal. Tennessee River Nav. Co. v. Walls, 18 Ala. App. 305, 92 So. 202, 205; 5 Am. Eng. Ency. Law (2d Ed.) p. 177; 2 Hutchinson on Carriers (3d Ed.) §§ 511, 512, p. 557; Ocean Steamship Co. v. Savannah L. W. S. Co., 131 Ga. 831, 63 S.E. 577, 20 L.R.A. (N.S.) 867, 127 Am. St. Rep. 265, 15 Ann. Cas. 1044; H. T. C. Ry. Co. v. Smith, 63 Tex. 322.
Assignments of error 1, 2, 3, 22, 23, and 24, having reference to counts 7, 8, and 9, need not be considered; those counts being withdrawn by counsel for plaintiff during the trial, and the jury instructed by the court that such issues were eliminated. So the charges relating to special contracts covered in the eliminated counts were properly refused. The case, being tried on counts 10, 11, and 12, rested on the common-law and statutory duty of such common carrier to one of the general public it was required to serve within the line and scope of its business and under the special circumstances entering into the discharge of that duty as a common carrier engaged in river navigation. Charges numbered 13, 15, 16, 17, 18, 20, 22, 27, 28, and 30 were properly refused; no special contract being declared upon.
Refused charge 19 sought to misplace the burden of proof of contributory negligence on plaintiff.
In argument plaintiff's counsel expressed the opinion that a verdict should be for "plaintiff for a substantial amount, and two previous juries which have tried this case agreed with me." Defendant objected to the argument and moved the court to discharge the jury and enter a mistrial of the cause. The court overruled the motion, but sustained the objection of defendant's counsel to this improper argument, saying to the jury that the argument was improper and the jury should disregard it; that it was immaterial to the jury what previous juries had done, and the jury should decide the case solely on the evidence before it. This intervention of the court was sufficient to remove any adverse influence this argument had on the jury. B. R., L. P. Co. v. Sloan, 199 Ala. 268, 74 So. 359; L. N. R. Co. v. King, 198 Ala. 168 (3), 73 So. 456; B. R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; B. R., L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Jackson Lbr. Co. v. Trammell, 199 Ala. 536, 539, 546, 74 So. 469; Clark-Pratt Cotton Mills Co. v. Bailey, 201 Ala. 333, 77 So. 995; Birmingham Waterworks Co. v. Watley, 192 Ala. 520, 526, 68 So. 330; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; L. N. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; T. C., I. R. Co. v. Spicer, 206 Ala. 141, 89 So. 293; Birmingham Infirmary v. Coe, 206 Ala. 687, 91 So. 604. In the cases of Moulton v. State, 199 Ala. 411, 419, 74 So. 454, and Tannehill v. State, 159 Ala. 51, 48 So. 662, the appeal was to what is called in the law books race prejudice; and in B. R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037, Florence C. I. Co. v. Field, 104 Ala. 471, 480, 16 So. 538, East Tenn., Va. Ga. R. Co. v. Carloss, 77 Ala. 443, and Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565, the appeal was to class prejudice. Such was not the character of the improper argument that was promptly and explicitly condemned and excluded by the court in the instant case.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.