legal limitations, so long as the county is , 6. Master and servant Own 304—Rulo concern. not in the actual need of same for county ing care by master using dangerous instru. purposes. It would be quite a narrow and

mentality held inapplicable to injury by serv. unbusinesslike interpretation, to hold that

ant using own pistol. the lawmakers contemplated that county

The rule that one who employs highly danproperty should lie idle and unremunerative his business is held, as to third persons to a

gerous instrumentality in the transaction of notwithstanding the commissioners' court degree of care proportionate to the dangers, did not deem it advisable to sell 'same. In did not apply to render master liable for servother words, it could not have been within ant's discharge of his own pistol, which he was the contemplation of the lawmakers that using because through his neglect one furnished such property must be sacrificed at a sale or by master was not in working order. remain unproductive and burdensome on the hands of the county, and that the governing Appeal from Circuit Court, Baldwin Counboard could not rent or lease the same until ty; John D. Leigh, Judge. they deemed conditions such as to warrant

Action for damages by Harry E. Tait an advantageous sale thereof.

against the American Railway Express ComThe decree of the circuit court is affirmed.

pany. Judgment for plaintiff, and defendant Affirmed.

appeals. Reversed and remanded. SOMERVILLE, THOMAS, and MILLER,

Counts 5 and 7 of the complaint are as JJ., concur.

follows:

"(5) The plaintiff claims of the defendant

twenty-five thousand ($25,000) dollars, damagAMERICAN RY. EXPRESS CO. V. TAIT.

es for that heretofore, on to wit, November 4, (1 Div. 295.)

1921, W. D. Odom was in the employ of the (Supreme Court of Alabama. Jan. 31, 1924. charge of a car then being used by the defend

defendant as an express messenger and was in Rehearing Denied May 29, 1924.)

ant in carrying express matter, which said

the Louisville & 1, Master and servant Cw329—Unnecessary to car was being transported allege negligent act of servant was in inter- Nashville Railroad Company on that day. The est of master.

plaintiff further avers that the said W. D. It is unnecessary to allege that the negli- ! Odom was required by defendant to travel armgent act of the servant complained of was in ed for the protection of express matter while the interest of the master or was in the pros- he was in charge of said car, and that on, to

wit, the said 4th day of November, 1921, while ecution of his business.

the said W. D. Odom was in charge of the said 2. Railroads Om 274(2)-White man in colored car for and on behalf of the defendant he had waiting room held not trespasser.

in his possesion a loaded pistol for the purA white man, unfamiliar with railroad sta- pose of protecting the express matter, and that tion, was not a trespasser by reason of the tõe said agent of the defendant, while in said fact that he was in the colored waiting room. I charge of said car and in the possession of the 3. Master and servant On304Trespass by

said pistol, while acting within the line and person injured by employee held immaterial. about the custody of the said pistol, and as

course of his employment was negligent in and That plaintiff had ridden as a trespasser on the proximate result thereof the plaintiff, while railroad prior to his injury by an express mes he was in a waiting room of the passenger senger handling a pistol in waiting room of station of the Louisville & Nashville Railroad station, for which plaintiff brought suit against Company, at Bay Minette, Ala., was shot in express company, held immaterial.

the left knee, and as the proximate result of 4. Master and servant 302 (2) Express said injury the plaintiff has been confined to

messenger handling pistol causing injury held bed for that time up to and including the presnot within scope of employment.

ent time, and has suffered and still suffers Where an express messenger, in demon- great physical pain and mental anguish, and strating to a friend a pistol he was required will continue in the future to suffer physical to carry, shot a passenger while the train was pain and mental anguish, will incur in the fustanding at the station, held that the mes

ture much expense for medicine and medical senger was acting without the line and scope treatment, has been unable to work since said of his authority, and express company was not time, and will be unable to work for a long liable.

period hereafter, and his earning power is 5. Weapons Fm18(1) – Firearms “dangerous permanently reduced, and he is permanently

disabled and disfigured." instrumentalities."

“(7) Plaintiff claims of the defendant the Firearms are “dangerous instrumentalities" further sum of twenty-five thousand dollars within the principle that one who employs damages, for that heretofore on, to wit, Nohighly dangerous agencies in the transaction vember 4, 1921, while plaintiff was in a waiting of his business is bound to exercise, as

room of the passenger station of the Louisthird persons, a degree of care proportionate ville & Nashville Railroad Company, at Bay to the danger.

Minette, Ala., in this county, he was wounded [Ed. Note.-For other definitions, see Words in the left knee by a bullet discharged from a and Phrases, Second Series, Dangerous Instru- deadly weapon, to wit, a pistol, in the hands mentality.]

of one W. D. Odom, a servant or agent of the

to

(100 So.) defendant American Railway Express Compa- | Cas. 1149. The demurrer was properly overDy, then in charge as express messenger of a ruled. railway express car. And plaintiff says that by

It is next strenuously insisted that under reason of said wound and as a proximate con- the evidence in this case the defendant was sequence thereof, he was caused to be sick for a long time and to be confined to bed; that he entitled to the affirmative charge, and this lost and will lose much time from his employ- we consider the question of prime imporment; that he suffered and still suffers great tance upon this appeal. A very brief referand severe pain and mental anguish; that his ence to the testimony is necessary. knee was caused to become permanently stiff

[2, 3] The accident occurred on November and useless to him; and that he was per- 4, 1921, while the plaintiff was standing in manently disfigured and disabled and rendered the colored waiting room of the passenger less able to work and earn money, all to his depot at Bay Minette. The testimony tends damage as aforesaid. And plaintiff alleges that to show that he was in the depot at that parbis said injury and damages were approxi- ticular time to meet a friend named Harris, mately caused by the negligence of the defend- and that he also intended, upon seeing Harapt, acting through its said servant or agent, in this, that the defendant required its ex- ris, to board the train for Mobile, having in press messengers and said Odom to go armed, his possession cash to pay his fare. Plainor have in said car readily accessible a deadly tiff was a white man, but unfamiliar with weapon, to wit, a pistol, for the defense of the the station, and we do not consider that the property intrusted to their care, and plaintiff fact he was in the colored waiting room has says that it thereupon became and was the any material bearing upon the case. If the duty of defendant, by its messengers in pos- evidence was to be believed by the jury, he session of such deadly weapons, to carefully was not a trespasser as contended by counhandle the same, so as not to infict hurt up-sel for appellant. Southern Ry. Co. v. on others, but that the said Odom, who in pur- 194 Ala. 78, 69 South. 131, L. R. A. 1916A,

Bates, suance of defendant's said requirement was armed or had said pistol readily accessible in 510; Widener v. A. G. S. R. R. Co., 194 Ala. said car, and who was then and there in charge 115, 69 South. 558. Nor do we see that the of said car as aforesaid, so negligently handled fact plaintiff had ridden as a trespasser on the same while acting within the line and scope the defendant's railroad from Mobile to Bay of his authority as that said pistol exploded or Minette affects the legal aspect of his case was discharged and injured plaintiff as afore- in the light of the testimony above referred said,”

to, showing that the wound was received Webb & Shepard, of Mobile, and Stone & while he was in the waiting room of the Stone, of Bay Minette, for appellant. depot, and that he was there for the purpose Outlaw & Kilborn, of Mobile, for appellee. of meeting a friend, and also as a prospective

passenger. GARDNER, J. Plaintiff in this action re

The evidence further tends to show that ceived a wound in the knee as a result of the defendant required express messengers the accidental discharge of a pistol while in on important runs to be armed, and the rules the hands of one Odom, an express messen- disclose that these messengers were furnished ger of the appellant, American Railway Ex- with a pistol and ammunition to be used in press Company, and from the judgment re- defense of themselves and the property in covered in his favor the defendant has pros- their care should occasion demand. The ecuted this appeal.

messengers were required to keep their fireThe cause was tried upon issue joined upon arms in good working condition under pencounts 5 and 7, and the sufficiency of these alty of dismissal; no excuse being accepted counts as against the demurrer interposed for failure to keep the firearms in condition is the first question presented for considera- and ready for instant use. tion.

W, D. Odom was the express messenger on . [1] It is well established by the decisions this train, and had in his possession an Iver. of this court that in cases of this character Johnson .38 pistol, furnished by the defendit is unnecessary to allege that the negligent ant company, and also a Smith & Wesson act complained of was in the interest of hammerless pistol which was his own or his the master, or was in the prosecution of the mother's. There was evidence tending to business of the master, as the act may be show that the Iver-Johnson pistol furnished within the scope of the agent's or servant's by the company had gotten wet, and was authority, and yet not be in the interest of not in good working order, and that he had the master or in the prosecution of the mas- not had time to clean it, and for this reason ter's business. This was expressly held in had taken his own pistol, the Smith & Westhe comparatively recent case of Jones y son, on this trip. While the train was standStrickland, 201 Ala. 138, 77 South. 562, which ing at the station at Bay Minette on the day contains citation of numerous authorities of the accident, and after Odom's duties as See, also, Southern Ry: Co. v. Wildman, 119 express messenger had been discharged, one Ala. 565, 24 South. 764; Gassenheimer v. West- Stuart, a clerk at the depot, while in the ern Ry. Co., 175 Ala. 319, 57 South. 718, 40 express car, noticed the two pistols on the L. R. A. (N S.) 998; Miller-Brent Lbr. Co. v. rack where they were usually kept, and asked Stewart, 166 Ala. 657, 51 South. 943, 21 Ann. | Odom what he was “doing with so much ar

v

tillery." Stuart's testimony is to the effect, ble, without any regard to the motive of the that Odom in response to his request took servant." the pistol from the rack and was showing him how it worked when it was accidentally in the following authorities: Euting v. C.

A discussion of this question may be found discharged. Odom's testimony does not materially differ from that of Stuart's, except

& N. W. R. R. Co., 116 Wis. 13, 92 N. W. in one particular, wherein Odom states that 358, 60 L. R. A. 158, 96 Am. St. Rep. 936; Stuart first took the gun from the rack, and Alsever v. Minn. & St. L. R. R. Co., 115 Iowa, that he (Odom) then took it from Stuart's 338, 88 N. W. 841, 56 L. R. A. 748; Sullivan hands, to show him how it worked. The bul- v. Creed, 2 British R. O. 139; Pittsburg, etc., let seems to have gone through the side of R. R. Co. v. Shields, 47 Ohio St. 387, 24 N. the express car, striking the plaintiff in the E. 658, 8 L. R. A. 464, 21 Am. St. Rep. 840. knee, inflicting a very serious wound as the

[5] Firearms are classed as dangerous inresult of which-according to plaintiff's evi- strumentalities within the influence of this dence-he has lost the use of that limb.

principle, and many interesting cases may be [4] We are of the opinion that the agent in found in the notes to section 782 et seq., 1 thus demonstrating the pistol to his friend Thompson on Negligence, and 20 R. C. L. 52. had stepped aside from the master's business,

[6] All of the authorities, however, to and was acting without the line and scope of which our attention has been directed, gave his authority, and that, so far as this theory application to this principle only in those of plaintiff's case is concerned, the defendant cases where the master had furnished the was entitled to the affirmative charge under dangerous instrumentality. Here the master the following, among other, authorities: Re- had furnished the agent with an Iver-Johnpublic Iron & Steel Co. v. Self, 192 Ala. 403, son pistol and ammunition for its use. The 68 South. 328, L. R. A. 1915F, 516; Barker rules of the company required that he keep

Milk Products Co., 205 Ala. 470, 88 the pistol in good condition, and that the South, 588; Wells v. Henderson Land & Lbr. firearms so furnished should be left at the Co., 200 Ala. 262, 76 South. 28, L. R. A. office of the company at the end of the route, 1918A, 115; Goodloe v. Memphis, etc., R. R. and forbid the use of any ammunition other Co., 107 Ala. 233, 18 South. 166, 29 L. R. A. than that furnished by the express company. 729, 54 Am. St. Rep. 67; Am. Ry. Ex. Co. v.

The rules also contain requirements to preWright, 128 Miss. 593, 91 South. 342, 23 A. vent the accidental discharge of firearms, L. R. 127; Medlin Mill Co. v. Boutwell, 104 among them, to the effect that if Colt reTex. 87, 133 S. W. 1042, 34 L. R. A. (N. S.) volvers are furnished, the employé must leave 109; Guille v. Campbell, 200 Pa. 119, 49 Atl. an empty chamber under the handle, likewise 938, 55 L. R. A. 111, 86 Am. St. Rep. 705; with a Smith & Wesson revolver, the cylinder Davis v. Green, 260 U. S. 349, 43 Sup. ct. of which must remain stationary when the 123, 67 L. Ed. 299.

hammer is down; but as to an Iver-Johnson But it is insisted for the appellee that un- revolver (such as was furnished the agent der the evidence a jury case was presented in the instant case) it is stated that it may upon the principle that one who employs be used with safety loaded to full capacity. highly dangerous agencies in the transaction There are also provisions for target practice of his business “stands under the obligation under certain circumstances, and necessary of exercising, to the end that third persons appliances for cleaning firearms. shall not be injured through those agencies,

In the instant case the pistol discharged was a degree of care proportionate to the danger not the one furnished by the company, and, of such injury.” 1 Thompson on Neg. $ 523. having furnished the agent with a pistol

The following quotation from this same and ammunition, there is nothing in this recauthority well illustrates the principle:

ord indicating any reason for the company

to anticipate the need by the agent of any "If a person employing such an agency com- other weapon. If the pistol furnished by mits the custody of it to his servant, he there the company was not in good working condiby commits to the servant the obligation to tion, it was the result of the neglect of the discharge his own duty of caring for it so that agent, and a violation of his duty—it merely it will not injure third persons. If, while so charged with this duty, the servant negligently needing the attention which the rules requir. abandons the custody of it, so that a third ed be given by the agent. person is injured in consequence of this neg. We do not think the case of Ga. Pac. Ry. ligence, the master will be liable; and it will v. Propst, 83 Ala, 518, 3 South. 764, cited by make no difference at all with his liability, counsel for appellee, tends to a contrary con. whether, in so abandoning the duty, the serv- clusion. There it was held the jury was auant did so for the purpose of effecting some thorized to infer that the conductor who had purpose of his own, or in furtherance of the charge of the train possessed implied authorbusiness of his master. In either case the master has committed to the servant the dis- ity to engage plaintiff 'as a brakeman, an charge of a duty which the law has imposed emergency existing to that end. Here the upon the master for the safety of third per- defendant furnished the agent with a proper sons, and the servant has abandoned that duty, instrumentality, of its own selection. That (100 So.) of in such cases is readily seen to be an important factor, and is also indicated by the McMILLIAN LUMBER CO. et al.' v. FIRST rules of the company. It clearly could'not NAT. BANK OF EUTAW. (2 Div. 829.) be said that such an emergency had been (Supreme Court of Alabama. May 22, 1924.) shown as to be reasonably anticipated by the company from the mere fact that the agent | 1. Appeal and error em900—Supreme Court had failed to properly clean the instrument will indulge, in favor of things done in trial furnished by the company.

court, all presumptions not contradicted by

record. We are therefore not persuaded that the principle contended for by the appellee con

Where an appearance by defendants and cerning the custody of a dangerous instru- of cases for trial are shown, the appellate court

session of the court for the peremptory call mentality furnished by the master should be will indulge, in favor of what was done in the further extented so as to embrace such a case trial court, all presumptions not expressly or as that here involved, where the instrumen- by necessary inference contradicted by the tality was that of the agent himself, as to record. the use of which the master was without 2. Appeal and error en 934(3)-Face of record notice or knowledge, and any necessity for

held to preclude appellate court from presumwhich was not to be reasonably anticipated.

ing defendants' plea was filed in advance of We have therefore reached the conclusion

judgment. that the plaintiff has failed to make out a Where record on appeal showed that decase for submission to the jury, and that the fault judgment was taken against defendants affirmative charge should have been given. within 30 days from service and without their

Let the judgment be reversed, and the appearance, such judgment was reversible er. cause remanded.

ror, and the appellate court could not presume Reversed and remanded.

that a plea filed by defendants on the same day

judgment was entered against them was filed All the Justices concur.

in advance of the judgment.

Appeal from Circuit Court, Greene Coun

ty; John McKinley, Judge. Ex parte TAYLOR. (7 Div. 481.)

Action on promissory note by the First

National Bank of Eutaw against the McMil. (Supreme Court of Alabama. May 15, 1924.) lian Lumber Company and others. Judg. Certiorari em40-Petition not filed within 15

ment for plaintiff, and defendants appeal.

Reversed and remanded. days too late. Petition for certiorari to review judgment

Hawkins & Hildreth, of Eutaw, and R. of Court of Appeals, not filed within 15 days, B. Evins, of Birmingham, for appellants. comes too late.

J. F. Aldridge, of Eutaw, for appellee.

Certiorari to Court of Appeals.

SAYRE, J. [1, 2] Plaintiff, appellee, had Sam Taylor, having been convicted of an judgment by default on March 27, 1923. offense, and on appeal to the Court of ApS

Service was had on February 26, 1923. peals the judgment having been affirmed, Defendants had 30 days after service in

which to answer. petitions for certiorari to the Court of Ap

The judgment, in the abpeals, to review and revise the judgment and sence of an appearance by defendants, was decision there rendered in the case styled premature by one day, and erroneous for that Taylor v. State, 99 South. 733. Petition dis- reason. Ivey v. Perry, 97 Ala. 583, 12 South. missed.

65. However, defendants on the same day,

March 27th, filed a plea of the general issue, Hugh Walker, of Anniston, for petitioner. and the contention for appellee is that thereHarwell G. Davis, Atty. Gen., opposed.

after, the court then sitting in regular term,

the cause was triable without regard to SOMERVILLE, J. In this case the record whether 30 days had elapsed since service, shows that defendant's application for re- and that the court here, in favor of the hearing was overruled by the Court of Ap- trial court, will presume that the plea was peals on April 8, 1924, and that his petition filed in advance of the judgment, which is to for the writ of certiorari to review the judg. say that the cause was at issue and properly ment of that court was filed in this court triable when judgment was rendered. on April 24, 1924. Not being filed within

Appellee's contention cannot be sustained. fifteen days, as the law requires, the petition The appeal is upon the record proper, withcomes too late, and must for that reason be out a bill of exceptions. An appearance by dismissed.

defendants being shown, and the court in Petition dismissed.

session for the peremptory call of cases for

trial, in favor of what was done in the trial ANDERSON, C. J., and GARDNER and court, the court here will indulge all preTHOMAS, JJ., concur.

sumptions not expressly or by necessary inFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ference contradicted by the record. Plea| 2. Appeal and error Om792_Sufficiency of de. was filed, and judgment rendered on the cree to support appeal jurisdictional. same day, and, if this were the whole story Sufficiency of decree to support appeal is told by the record, we would presume the jurisdictional, and where unauthorized appeal presence in court of the defendants when is attempted it must be dismissed by court ex judgment was rendered.' But, to presume

mero motu. in the case presented that defendants were in 3. Appeal, and error 21-Jurisdiction to court by reason of their plea-i. e. that the

consider appeal from decree not final, may plea was filed in advance of judgment

not be conferred by consent. would involve a contradiction of the record,

Jurisdiction to consider appeal cannot be for the recital of the judgment is that “de-conferred by consent where decree below is

not final. fendants, being now solemnly called, came not, but made default.” The authority of Appeal from Circuit Court, Franklin CounIvey v. Perry, supra, controls the case.

ty; Chas. P. Almon, Judge. Appellee refers to a line of cases in which it has been held that it is of no consequence

Bill for alimony, etc., by Kate Furr Jackwhether the formal judgment is by default

son against L. L. Jackson. From a decree or nil dicit. Eminent Household v. Lockerd, granting alimony pendente lite and solici202 Ala. 330, 80 South. 412; Elyton Land Co. tor's fee, respondent appeals. Appeal dis

missed. -y. Morgan, 88 Ala. 434, 7 South. 249; Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 South. Williams & Chenault, of Russellville, for 800. Others to the same effect might be cit- appellant. ed. That is true where the cause is ripe for Key & Key, of Russellville, for appellee. judgment and the reason of the rule of indifference to form in such cases, as pointed THOMAS, J. The appeal is taken from an out in Atlantic Glass Co. v. Paulk, supra, interlocutory decree allowing alimony and and the cases there cited, is that the form of counsel fees pendente lite. the judgment deprives the defendant of no [1-3] The decree is not such as has been privilege of insisting on any error in this made by statute to support an appeal before court which otherwise would have availed final decree. The question presented is juhim. Here, if in fact judgment was rendered risdictional, and jurisdiction cannot be conagainst defendants by default with appear- ferred by consent. Richardson v. First Nat. ance by them, there was reversible error. Bank of Gadsden, 119 Ala. 286, 24 South. 54;

It may be, as the brief avers, that actually Nabers, Receiver, v. Morris Min. Co., 103 the defendants were present in court by at- Ala. 543, 15 South. 850; Barclay, Assignee, torney, cognizant of what was being done, v. Spragins, Adm’r, 80 Ala. 357. That is to and raised no objection; but we know only say, the appeal must be dismissed by this the language of the record and that language court ex mero motu, for the reason that the contradicts this suggestion. Had 30 days court has no jurisdiction to hear and deterelapsed since service, the conclusion would mine the matter sought to be presented for be different. Here, on the face of the rec-i review, when an appeal as sought to be takord, judgment was rendered within 30 days en is not authorized by law. In Ex parte from service and without appearance by de- Eubank, 206 Ala. 8, 89 South. 656, this court fendants.

said: Reversed and remanded.

“The remedy by petition for writ of manda

mus is not questioned by demurrer. It was ANDERSON, O. J., and GARDNER and the proper course,

as no appeal is MILLER, JJ., concur.

allowed by law from that decree"-allowing alimony pendente lite and solicitor's fees. State ex rel. Sellers v. Locke, Judge, 208 Ala. 169,

93 South. 876; Ex parte Cairns, 209 Ala. 358, JACKSON V. JACKSON. (8 Div. 624.)

96 South. 246; Ex parte Dunlap, 209 Ala. 453,

455, 96 South. 441; Rickerson v. Riekerson, (Supreme Court of Alabama. May 15, 1924.) 203 Ala. 203, 82 South. 453; Ex parte Jones,

168 Ala. 183, 53 South. 261; Id., 172 Ala. 186, 1. Appeal and error w69 (1)-Interlocutory 55 South. 491. decree allowing alimony and counsel fees pendente lite will not support appeal.

The appeal is dismissed. Interlocutory decree allowing alimony and counsel fees pendente lite will not support ap

ANDERSON, C. J., and SOMERVILLD peal.

and GARDNER, JJ., concur.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes