(100 So.)

ATLANTA & ST. A. B. RY. CO. v. KNIGHT. (4 Div. 123.)

(Supreme Court of Alabama. May 1, 1924.)

1. Pleading 64 (2)-Separate causes of action held not joined in same count for flowage.

Count alleging negligent construction of culvert over stream running through plaintiff's lands, causing constant overflow, and averring injury as proximate result thereof, held not to aver two causes of action.

2. Waters and water courses

7. Waters and water courses 179 (3)-Evl dence of injuries to stock from flowage held competent.

In action for negligent erection of culvert over stream running through plaintiff's land, evidence that plaintiff's cows and mule went into wet, boggy land and died, and reasonable market value of each, was relevant; there being evidence that such injury would not have occurred except for negligent construction of culvert causing water to overflow.

8. Waters and water courses 179(6) — Cause of loss of stock held for jury.

Where evidence conflicted as to whether 171(1)-Rail-negligent erection of culvert over stream runroad constructing culvert must use ordinary ning through plaintiff's land caused loss of plaintiff's cows and mule, question thereon was properly left to jury.

care.

In construction of culverts over streams running across right of way, railroads are bound to use ordinary care not to obstruct flow of water from rainfalls which may reasonably be expected.

3. Waters and water courses 179 (3)—Evidence of conditions before and after construction of railroad culvert held competent.

In action against railroad for negligent erection of culvert across stream running through plaintiff's land, plaintiff's evidence that, after he purchased, railroad company removed large culvert prior to which there had been no overflow and erected smaller one, and that since small culvert was put in, in his best judgment, in ordinary times water stands on something like six or eight acres of land, was relevant and competent.

4. Evidence 558(1)-Cross-examination of expert as to proper fall of culvert held proper.

In action for negligent erection of culvert over stream running through plaintiff's land, where defendant's civil engineer measured culvert just before trial and testified on cross, examination that it had about three inches' fall from upper to lower end, there was no error in allowing plaintiff to ask him whether in his judgment culvert should have had a fall of from six to ten inches.

5. Waters and water courses

179(3)-Evldence held competent on question of damages to land by flowage.

In action for negligent erection of culvert over stream running through plaintiff's land, causing overflow, evidence, tending to show that plaintiff's land was wet and boggy, was permanently injured, that trees growing thereon died, and that adjacent cultivated land was kept wet and unfit for crops, was proper.

6. Waters and water courses 179 (3)-Evidence held admissible as showing knowledge of defects in railroad culvert.

In action for negligent erection of culvert over stream running through plaintiff's land, where defendant's section foreman had testified as to condition of land, there was no error in permitting cross-examination whether plaintiff had ever asked him to open the culvert so that water would run off.

as to

9. Appeal and error 1078(1)—Errors not argued and insisted on in brief, waived. Errors assigned, but not argued and insisted on in brief, are waived.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action for damages by John C. Knight against the Atlanta & St. Andrews Bay Railvert over a stream running through plaintiff's way Company for negligent erection of a cullands. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Espy & Hill, of Dothan, for appellant.
Mullins & Martin, of Dothan, for appellee.

over

MILLER, J. This is a suit by John C. Knight against the Atlanta & St. Andrews Bay Railway Company, a corporation, for damages for negligently erecting a culvert a stream running through his land, which caused the water to overflow some of his land, making it continually wet, boggy, injuring the land, caused trees on it to die, and two cows and a mulę, in a pasture in which is located this land, went into this wet, boggy place, and could not get out and died. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court this appeal is prosecuted by the defendant.

The original complaint contained one count. Demurrers of the defendant to it were sustained by the court. The plaintiff then amended by adding counts 2, 3, 4, 5, 6, and 7. Demurrers of defendant to each of these counts of the amended complaint were overruled by the court.

to each of these counts should have been sus[1] The appellant insists these demurrers tained, because there was joined in one and the same count two separate causes of action. This is the only ground mentioned and insisted on in the brief. The court did not

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The defendant pleaded the general issue, and the cause was tried thereon by the jury.

err in overruling the demurrers to these | Shahan v. A. G. S. R. R. Co., 115 Ala. 181, 22 counts. Count 2 avers the defendant negli- South. 449, 67 Am. St. Rep. 20. gently constructed a culvert over a stream of water running through the land of plaintiff, and over the right of way of defendant, [3] The plaintiff purchased this land in which proximately caused the water natural- 1911. He was permitted by the court to testily running down the stream to back on and fy, over objection of the defendant, that at overflow the lands of plaintiff, to stand con- that time the defendant had an embankment tinuously there in ponds, made it unusually on each side and a trestle over this stream, muddy and boggy over about five acres of and later in 1914 erected a large culvert his land, and rendered it valueless. Count over the stream and filled in between the 3 is the same as count 2, except it avers embankments; and that during this time the about five or six acres of the land of plain- opening under the trestle and afterwards tiff, adjacent to the boggy five acres, remains this culvert carried off the water, and this wet, and is rendered unfit for cultivation on land of plaintiff was not covered with water. account of this water, and plaintiff was de- Later this large culvert was taken out and prived of its rental value and claims damages a smaller culvert was put in its place by for it. Count 4 is the same as count 2, except the defendant for the water to run through, it avers this boggy, wet, overflowed land was and since then "the water has to force its in a pasture of plaintiff, and in May or June, way there," and "that land is covered prac1921, a cow of plaintiff, of the value of $25, tically all the time and worse at other bogged down therein and died, for which times"; and since the small culvert was put plaintiff claims damages. Count 5 is the in "that in his best judgment in ordinary same as counts 2 and 4, except it claims $25 times the water stands on something like six damages for the value of a cow of plaintiff or eight acres," and there was evidence tendthat bogged down in this wet land in Novem- ing to show that from twelve to fourteen ber, 1921, and died. Count 6 is the same as acres of land were kept damp and wet. This count 2, 4, and 5, except it claims $200 was relevant and competent evidence; it damages for the value of a mule of plaintiff | tended to show that prior to the construction that bogged down in this wet land in Novem- of the small culvert this land of plaintiff ber, 1921, and died. Count 7 is the same as count 2, except it claims $200 damages for standing trees on this land that died as a proximate result of negligence of defendant in the construction of the culvert causing this water to back and stand continuously on this land.

[2] In the construction of culverts over streams running across the right of way, railroads are bound to use ordinary care so as not to obstruct, to the damage of others, the flow of water from rainfalls, such as may be reasonably expected from frequent or rare occurrences. Columbus & Western Ry. Co. v. Bridges, 86 Ala. 448, 5 South. 864, 11 Am. St. Rep. 58; South. Ry. Co. v. Plott, 131 Ala. 312, 31 South, 33.

Each of these counts avers facts showing that duty owing by the defendant to the plaintiff; each count avers a negligent construction of the culvert which caused a constant overflow of water upon the land of plaintiff, and each count avers an injury as a proximate result thereof, to the land, or trees or stock of plaintiff. Each count states a cause of action, and two causes of action are not averred in either count. It appears by averment in each count that the stream was obstructed during the year 1921, and now by a permanent culvert so small as to cause a constant overflow of water upon lands of plaintiff, and to keep water thereon continuously. S. S. S. & I. Co. v. Mitchell, 181 Ala. 576, 61 South. 934; South. Ry. Co. v. Plott, 131 Ala. 312, 31 South. 33; Cent. of Ga. Ry.

did not overflow, and its overflow was due to the negligent construction of the small culvert as averred in the complaint, and it tended to show permanent injury to and constant overflow of the land. The defendant cannot justly complain at these rulings of the court. The defendant had full opportunity to crossexamine the plaintiff thereon. Ala. Con. C. & I. Co. v. Vines, 151 Ala. 398, 44 South. 377; S. S. S. & I. Co. v. Mitchell, 181 Ala. 576, 61 South. 934.

[4] Will Crawford, witness for the defendant, saw the culvert and this land of plaintiff just before the trial; was sent there by defendant, and measured it; he has been a civil engineer for 26 years. He testified on cross-examination that the culvert had about three inches fall from upper to lower end. The court did not err in allowing plaintiff to ask him, and for him to answer "that in his judgment that culvert should have had a fall of from six to ten inches." He saw the culvert, had had 26 years' experience as a civil engineer, saw the surroundings, was sent there to examine it by the defendant, and was competent and qualified to give an with other evidence, tended to show the culopinion, and this testimony, in connection vert was not properly constructed so as to carry off the water from ordinary rainfalls. "The rule excluding 'opinions' as evidence is not applied so strictly to questions of 'values' and 'estimates' as to many other subjects." Mobile, Jackson & K. C. R. Co. v. Riley, 119 Ala. 260, 24 South. 858; Jackson Lbr. Co. v. Cunningham, 141 Ala. 214, 37 South. 445,

(100 So.)

[5] The court did not err in allowing evi- affirmatively from the evidence, then the dence tending to show this land was wet and court did not err in allowing the testimony to boggy, was permanently injured, that trees be introduced showing iujury to, death of, growing therein died, that adjacent cultivat- and value of the cows and mule, and the ed land was kept wet and unfit for growing court did not err in refusing to give to the crops. S. S. S. & I. Co. v. Mitchell, 181 jury the written charges requested by the deAla. 576, 61 South, 934. fendant, mentioned above. 10 Michie, Dig. p. 574, § 24 [Proximate Cause of Injury]; and authorities there cited.

Prior to the construction of this small culvert by defendant, it appears from certain

[6] F. G. Renfroe, witness for defendant, testified that he was section foreman of defendant from September, 1918, to August, 1922, on the roadbed that ran through this land of plaintiff. It was low land; he ob-parts of the evidence that this land of plainserved the land during 1921; he knew the land where the pasture was located; did not remember seeing any dead timber on this land; there was dead timber there before 1921; the land there contiguous to the railroad is generally low, nat land. The plaintiff on cross-examination asked him, over the objection of the defendant, this question, "Did plaintiff ever ask you to open up this culvert so the water would run off?" Witness answered:

tiff was dry, and not muddy and boggy, and after its construction water stood on five or six acres of it all the time, kept it wet, made it muddy and boggy, and the culvert was insufficient to carry off the water of usual and ordinary rains. This land was located in an inclosure used by the plaintiff to pasture his cows and mule. Two cows and one mule of the plaintiff, in the pasture, attempted to go through this wet land, overflowed from the culvert, got in a boggy place, the cows died, and the mule "He came to me one day when I was work- was prized out and died soon afterwards. ing near by, possibly near the corner of the pas-There was also evidence tending to show that ture, and was telling me that he had made complaint to Mr. Sherman about that. didn't never come to me directly."

He

this land was naturally low and wet, and water remained on it naturally; and the water on it and its muddy and boggy condition were not due to the negligent construction or maintenance of this culvert by the defend

ant.

The court would not exclude this evidence on motion of defendant. It is evident that this conversation took place after the small [8] There was evidence from which the culvert was constructed. It was during the jury could reasonably infer that this injury time Renfroe was section foreman of defend- to and death of the cows and mule would ant. He had charge of this part of the road.not have occurred, except for the negligence He was working near this land at the time. of the defendant in the construction of this This evidence was relevant, tending to show that this culvert did not carry off the water, that it needed to be opened, and the defend

ant's section foreman knew it.

[7] The defendant objected to and moved to exclude the evidence showing that two cows and one mule of plaintiff went into this wet, boggy land, bogged up, died, and the reasonable market value of each, because this damage to the stock was not the proximate result of the water backing on the land caused by the defective construction of this small culvert by defendant. And for the same reason the defendant insists the court erred in refusing written charges 1, 2, 3, and 4, separately requested by it; that if the jury believed the evidence, they cannot give plaintiff any damages for the loss of either cow or mule.

culvert, which caused the water to back up on this land of plaintiff in his pasture, kept it wet, and made it boggy with water remaining on it constantly. It was competent and relevant for the plaintiff to prove that his two cows and mule were in this pasture, walked into this overflowed land from the culvert, got bogged up therein, died, and the value of each. The court properly refused the written charges requested by the defendant that if they believed the evidence they could not give plaintiff any damages for the loss of either of the cows or the mule. Under the conflicting evidence and its tendencies in this cause, the court properly left the question of the right to recover damages for loss of the cows and mule for the consideration and determination of the jury. Authorities supra.

Was the defendant guilty of negligence in [9] There are many errors assigned. Only the construction of this culvert? Did this a few of them have been argued, and prenegligence of the defendant in the construc-sented in brief in a way which entitles them tion of this small culvert proximately con- to consideration of this court. We have contribute to the death of the cows and mule? sidered the errors assigned, argued, and preDoes it appear from the evidence or any sented by appellant, and the errors assigned, phase of the evidence that the injury to and but not argued and insisted on in the brief, death of the cows and mule would not have are waived. South. Ry. Co. v. Cunningham, happened but for this negligence of the de- 112 Ala. 496, 20 South, 639; Syllacauga Land fendant? If these questions can be answered | Co. v. Hendrix, 103 Ala. 254, 15 South. 594;

Haley v. Miller, 193 Ala. 482 [1st par. of opin- [7. Bankruptcy 363-Proof and filing of ion], 69 South. 564.

ANDERSON, C. J., and SAYRE and estate of company executing notes to claimant GARDNER, JJ., concur.

Mere acceptance of notes from company not regarded by payee as worthy of credit at time of shipments and receipt of goods sold to another company, whose agreement with maker to receive materials and credit purchase price on its account with maker were unknown to payee, did not amount to accord and satis- [1] If the defendant repudiated the contract faction, payment, or novation of original debt. of sale yet it received, used, or sold the goods

(100 So.)

was after receipt and sale of the first shipment, and after the second shipment had gone forward, completing the shipment of the "carload order" mentioned in plaintiff's letter of February 10, 1920. It is uncontroverted that, notwithstanding the manner of signature to the order, and the correspondence we have adverted to, defendant received and sold both shipments of material and made claim for excess freight charges by reason of circuitous routings.

of the invoice price and unless there was a This evidence tended to show some arnovation or payment of the debt, it is liable rangement between the G. W. Phalin Lumber therefor in assumpsit. Privity of contract Company and the defendant not known to or is not necessary to support such action-participated in by the plaintiff. This stateonly that arising from an implied promise ment by the Tuscaloosa Lumber Company to pay-that arises under the law of such case, in an action equitable in character. The good morals are the reason for such liability and its enforcement. Farmers' Bank & Trust Co. v. Shut & Keihn, 192 Ala. 53, 68 South. 363; Heide v. Capital Sec. Co., 200 Ala. 397, 76 South. 313; Dorsey v. Peppers, 202 Ala. 321, 80 South. 403; Owensboro Wagon Co. v. Benton Mercantile Co., 204 Ala. 415, 85 South. 723; First Nat. Bank of Dozier v. Farmers' Bank of Luverne, 207 Ala. 402, 92 South. 639; Allen v. M. Mendelsohn & Son, 207 Ala. 527, 93 South. 416. The order was dated February 3, 1920, and immediately thereafter (February 10, 1920) plaintiff wrote defendant confirming the arrangement made by its salesmen giving defendant the right to sell its products indicated within the counties of Tuscaloosa and Pickens, and concluded as follows:

"It is understood that this arrangement will remain in force for a minimum of six months and as much longer after that as may be mutually profitable and agreeable. We thank you for the carload order you have placed with us through Mr. Doyle, shipment of which we will promptly make, and look forward with pleasure to our relations with you."

This "carload order" went forward in broken shipments from two initial points, being received by defendant on the respective dates of May 9, 1920, and June 30, 1920, unloaded in its yards, and sold. On May 14, 1920, plaintiff wrote, as to payment of the first shipment, to Tuscaloosa Lumber Company: "You have apparently overlooked statement sent you covering your account of $960.00. "Prompt payment by customers eliminates the expense of carrying long overdue accounts and enables us to furnish the very best material at the lowest possible prices.

"Will you kindly assist us in thus serving the trade in the best possible manner by sending remittance promptly."

Plaintiff again wrote on June 4, 1920:

"We find you have not responded to our recent request for payment of your account amounting to $960.00.

"As this amount is now 30 days overdue, we would appreciate remittance or definite advice by return mail."

We should indicate that on June 25, 1920, defendant wrote G. W. Phalin Lumber Company as follows:

"We inclose herewith a letter just received from the Tropical Paint & Oil Company and a copy of our reply to them. As we understood the matter, you were to pay for this roofing and we are crediting your account for the

same.

"We inclose herewith credit memorandum showing that it was short four rolls of the two ply roofing, $8.00, and you should deduct this in remitting. There should also be an adjustment in freight as this was not a carload."

On July 10, 1920, plaintiff replied to defendant's letter of June 25, 1920, as follows:

"You wrote us on June 25th that you thought the G. W. Phalin Lumber Company was to pay for the shipment of roofing materials which Have you taken the matter up with them and we sent you some time ago invoiced at $960.00. what do they say in regard to payment?"

Defendant replied to this last-quoted letter on July 14, 1920, as follows:

In reply beg to state that at the time we wrote you on June 25th we sent the Geo. W. Phalin Lumber Company a copy of our letter to you, and also wrote them calling their attention to the fact that they had charged us with this material and that they were to pay for the same, and they stated that they would give it prompt attention. We will call their attention again to the payment of this account, and it would be well for you to write them also."

On August 17, 1920, the plaintiff again urged the defendant as follows:

"Are we to understand that the invoice for roofing which matured on July 30th is to be handled the same as the $969.00 item, namely,

On June 25, 1920, defendant replied as through the Phalin Lumber Company, would follows:

"In reply beg to say that while the car of roofing was invoiced to us and shipped direct to us, we understood that the G. W. Phalin Lumber Co. would pay for this charging it to us and we are now taking the matter up with them.

"We certainly had no hand in the matter of ordering this material and are satisfied they will give it their attention."

say here that we have not had any remittance from the Phalin people as yet on the large item and it might be a good idea for you to take the matter up with them yourselves and get them to rush the check through, and if this $387.50 item is to be taken care of by them also, kindly call that to their attention."

There was no immediate reply from defendant as to this letter. However, defendant offered in evidence a correspondence between