(102 So.) place of business of the defendant, and at the time of firing the shot by the defendant which took the life of plaintiff's intestate, the defendant was in danger of losing his life or of suffering grievous bodily harm at the hands of plaintiff's intestate, that such danger was imminent and was either real or reasonably apparent, and that the defendant was free from fault in bringing on the difficulty which resulted in the death of plaintiff's intestate." This plea was amended by adding, after the words "reasonably apparent," the fol 15. Evidence 110-Evidence that party at-lowing: Evidence of attempt by party to intimidate witness, create bias, or suppress testimony, is admissible against such party. 16. Evidence 110-Evidence of attempt to intimidate witness not admissible against party where unauthorized and without his knowledge. In action under Homicide Act, evidence that witness for plaintiff had been taken out in a car and threatened with prosecution for death in question if he failed to adhere to first statements was properly excluded, where person thus threatening witness was neither party nor witness, nor shown to be agent of plaintiff, and where neither plaintiff nor her counsel was shown to have had any knowledge of such threats. 17. Death 60-Evidence of defendant's character inadmissible. An action under Homicide Act is a civil action, and, though damages are punitive, evidence of defendant's general good character is inadmissible. 18. Appeal and error 207, 1060 (1)-Refusal to exclude argument of counsel held not reversible error in absence of objection and prejudice. In action under Homicide Act, refusal to exclude argument of plaintiff's counsel that anybody under the law is presumed to be a man of good character held not reversible error, where not objected to at time of utterance and no injury could probably result. 19. Trial 260(1)-Refusal of charges cov- "That the defendant was impressed with the honest belief of impending peril to his life or limb, and that it was necessary for him to shoot the deceased in order to protect himself from death or great bodily harm." Gray & Powell, of Jasper, for appellant. BOULDIN, J. The suit is for damages for death by wrongful act, brought under the Homicide Act. Code 1907, § 2486. [1] The complaint was amended by substituting new counts for the original counts, thus eliminating the original. Any ruling adverse to defendant on the original counts is immaterial. [23] The third count charges that the defendant "wrongfully caused the death of * plaintiff's intestate, by wrongfully count charges the same, adding that "as a shooting him with a pistol." The fourth proximate consequence of which wrongful shooting plaintiff's intestate died." Both counts are good and not subject to demurrer. In cases under this statute where death is the result of negligence, a complaint should generally show such relation between the parties as to raise a duty from one to the other. Thereupon a general averment of negligence is sufficient to show a failure of duty. This should be followed by an averment that such negligence was the proximate cause of the injury. The counts before us charge direct trespass rather than case. broad enough to cover a wrongful act resulting from negligence, they charge a violation of the common duty which all men owe to each other. Wrongfully causing the death If Appeal from Circuit Court, Walker Coun- of another by shooting him with a pistol, ty; Ernest Lacy, Judge. Action by Josephine Drummond, as administratrix of the estate of Sam Drummond, deceased, against Freeman Drummond, for damages for the wrongful killing of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed. Plea 2 is as follows: The defendant for answer to the complaint says: "He shot and killed the plaintiff's intestate in self-defense; that is to say, such shooting and killing occurred in the office and whether intentionally or negligently, includes connection between the act and the fatal inall the elements of duty violated and causal jury. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Id., 208 Ala. 553, 94 So. 546; Massey v. Pentecost, 206 Ala. 411, 90 So. 866. [4, 5] In setting up self-defense as justification in this form of action, all the elements of self-defense should appear in the plea. A plea showing the homicide occurred in the place of business of defendant need not negative the opportunity for retreat. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 SO.-8 ing to talk to counsel on the other, is proper, and its refusal error. [6-9] In setting forth the necessity, the presence of imminent danger to life or of grievous bodily harm, it may present real or We have carefully gone over the examinaapparent necessity in the alternative. Ap- tion of the witness Gardner. It appears parent necessity must be such as to impress from his repeated cross-examination that he a reasonable man of its presence and immi- freely admitted going to the solicitor's office nence, and must so impress the defendant at at the instance of Jake Phillips, a kinsman the time of the fatal shot. Otherwise, he of the deceased; that he told his version of does not fire the shot in the necessary pro- the killing, went to the dental office where tection of his person, but out of other mo- the homicide occurred, and pointed out the tive, and there can be no self-defense. The locations and distances; that he was adruling on demurrer to plea No. 2, necessitat-vised not to talk about the case; and finally ing the amendment filed thereto, imposed on said: defendant no higher burden in maintaining self-defense than the law requires. Plea No. 3, seeking to set off an indebtedness due from the decedent to defendant against a claim for damages for wrongfully causing decedent's death, is not good for the following These statements sufficiently disclosed any reason, if not otherwise: The damages rebias which the witness may have shown in coverable are not assets of the estate; the the matter, and rendered harmless any prior "The attorneys for the defendant come to me and asked what happened up there, and I told them that it would be best for me not to tell, and I don't think I told them anything about what happened." rulings thereon. [15, 16] Effort was made to show that on another occasion Jake Phillips took the wit ness out in a car and told the witness that if he did not adhere to his first statement about the case, the defendant would charge the crime to the witness, or to that effect. While this evidence may tend in some degree to show the position in which the witness was placed, a different principle enters. Any effort by a party to intimidate a witness, to create bias or prejudice in his mind against the other side, or to suppress testi administrator is a mere trustee or representative of the next of kin in suing for their benefit. Code 1907, § 2486; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882. There was no error in rulings on the pleadings. [10-14] Felix Gardner, a witness for plain tiff, was the only eyewitness to all or a part of the fatal difficulty. In a protracted crossexamination of Mr. Gardner, the defendant sought in many ways to show bias. Several assignments of error, earnestly argued, relate to rulings on this issue. In general, any fact which tends to show bias on the part of a witness is proper evidence. A wide latitude is allowed on cross-examina-mony, may be used as evidence against such tion to develop such fact. The extent of such cross-examination, and especially the recalling of the witness for that purpose, is to a degree in the discretion of the trial court. The undue consumption of time in the trial of causes, and the avoidance of multiplied collateral issues tending to becloud the main issue before the jury, are matters necessarily committed in the first in-son to the cause of him who seeks to use it. stance to the wise discretion of a trial judge. This discretion does not warrant the denial of the right to cross-examine the witness on matters directly affecting his interest or bias in the case. party The inquiry is not its effect on the witness and his testimony, but its probative force against the party resorting to such means to effect his ends. Such facts clearly shown often work the undoing of the party guilty of such practice. It indicates, not a seeking after justice, but an effort to poison the stream of justice. The reaction is a poi Clearly such consequences must not be visited on a party who is not shown to have resorted to this means. Phillips was not a party nor a witness, nor shown to be an agent of the plaintiff in the conduct of the cause. Neither the plaintiff nor her counsel Applying these principles in the case at are shown to have had any knowledge of the bar. we think it sufficient to say: The fact that the witness Gardner, on request of Jake Phillips, a kinsman of deceased, went to the solicitor's office and thence to the place of the homicide, made a full statement of the case and pointed out the location and movements of the parties, was not evidence of bias but a duty when called upon by public authority. The fact that the solicitor's office was locked for the purpose of a free and private interview was immaterial. interview, if such there was, between Phillips and Gardner. To have admitted the evidence would have thrown into the case the doings of a third person to the probable injury of the plaintiff. It was properly excluded. [17] The evidence offered to prove the general good character of defendant was properly refused. While the damages are punitive, and in general the issue is the same as in a homicide case, it is a civil action. The rule which excludes the evidence in such acEvidence tending to show a lining up of a tions is grounded, not so much on a differwitness with one side, such as giving a full ence in the probative effect of the testimony interview to counsel on one side and refus-in civil and criminal cases, but upon the pol (102 So.) Relationship of highway contractor and subcontractor each engaged in different work at separate points is not a "joint enterprise" as basis for tort action. 5. Parties 56 Recovery cannot be had against subcontractor, where case is not made against contractor who was original party, subcontractor having been brought in by amendment. icy of opening up such issues. It may be 4. Highways 200-Highway contractor and said that a man of good character is less subcontractor not engaged in "joint enterdisposed to wrongfully kill another than a prise." man of bad character. The same may be said as to all forms of torts, and even the breach of contractual obligations. Many forms of action ex delicto are grounded upon or aggravated by malice. Yet the good of character evidence in such cases is outweighed by the evils that go with such inquiry in civil cases. The facts of the case, found, if need be, by the aid of evidence of the character of witnesses, give the triors of fact the true basis for decision. Rhodes v. Ijames, 7 Ala. 574, 42 Am. Dec. 604; Holley v. Burgess, 9 Ala. 728; Greenwood Café v. Walsh, 15 Ala. App. 519, 74 So. 82; Lord v. Calhoun, 162 Ala. 444, 50 So. 402; Davis v. Sanders, 133 Ala. 275, 32 So. 499; 22 C. J. p. 470, 561. [18, 19] The remark of plaintiff's counsel in argument, “Anybody under the law is presumed to be a man of good character," is not shown to have been objected to at the time it was uttered. The defendant and witnesses were included in the remark, and no injury could probably result. It is not necessary to pass upon the legal accuracy of the remark. There was no reversible error in overruling the motion to exclude. The refused charges were fully covered by the oral charge. We find no reversible error in other rulings presented. Affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. THOMAS v. SAULSBURY & CO. et al. (2 Div. 844.) contractor or subcontractor, where a case was 56-Discontinu ance not proper when original party not stricken, and case went to jury against both defendants. Where original party, not shown to be liable, was not stricken by amendment, or otherwise, and case went to jury against him and party brought in by amendment, it was not proper case for motion for discontinuance. On Rehearing. 7. Highways 113(4)—Subcontractor has implied authority to do what is necessary in per.forming work. Highway subcontractor has implied authority to do what is reasonably necessary and incidental to the work committed to him. 8. Highways 213(2)-Jury question whether closing road by subcontractor was incident to performance of work. It is a jury question whether closing road by subcontractor was a necessary incident to performance of his work in view of nature of the work. 9. Highways 213(1)—Jury question whether road subcontractor was contractor's employee. It is a jury question whether road subcon(Supreme Court of Alabama. Oct. 23, 1924. tractor was an employee of contractor with imOn Rehearing, Nov. 27, 1924.) Person closing highway by erecting barriers owes public the duty to so construct barriers as to be readily seen at a safe distance by ordinary observation. 2. Master and servant 319-Contractor, ow- 3. Master and servant 302 (1)—Negligence master liable. plied authority to procure order closing road from board of revenue, and to proceed to close In action for injuries caused by collision with barrier across highway, evidence held to take question to jury whether barrier was properly constructed, and whether plaintiff had no tice that road was closed. Appeal from Circuit Court, Sumter County; John McKinley, Judge. Action for damages for personal injuries by Howard Thomas against Saulsbury & Co., and Parsons & Dabbs, partnerships, and the Under doctrine of respondeat superior, lia-individual members thereof. From a judgbility only exists when negligence causing injury ment for defendants, plaintiff appeals. Reis within scope of employment. versed and remanded on rehearing. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes John W. Altman and W. A. Denson, both | executing the work undertaken by the conof Birmingham, for appellant. Patton & Patton, of Carrollton, and Goodwyn & Ross, of Bessemer, for appellees. BOULDIN, J. The action is for personal injuries received by coming in collision with obstructions upon and across a public highway. The highway was in process of reconstruction under contract with the state highway department. The barrier complained of was placed across the road for the purpose of closing a section of the road to public travel, after obtaining an order to close from the board of revenue of the county. [1] One who exercises the privilege of closing a public highway by the erection of barriers thereon owes the duty to the public to so construct same as to be readily seen at a safe distance by ordinary observation. This principle is not questioned, but presented one of the issues of fact on the trial. Owing to the turn which the case took, no rulings are here presented on the question whether the obstruction was properly constructed and maintained. Certain work on the section of road involved was being done by a subcontractor, who erected and maintained the obstruction with which plaintiff came in contact. The primary inquiry here is whether there was evidence tending to support a claim of liability against the contractor for alleged negligence of the subcontractor. tractor. Such duty exists when the execution of the work tends to create a nuisance; when it is dangerous within itself, as in blasting operations; when the work requires the creation of dangerous conditions, such as ditches and the like in a public highway; or generally when the maintenance of safe conditions in connection with the work is essential to the protection of the public. In such case the chief contractor cannot transfer his public duty to a subcontractor. If the contractor places the performance of such duty in the hands of another, to that extent, that other is in law the mere agent, and the contractor is liable for his negligence. Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757; Scoggins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175; So. Ry. Co. v. Robertson, 16 Ala. App. 155, 75 So. 831; Sloss-Sheffield S. & I. Co. v. Hubbard, 14 Ala. App. 139, 68 So. 571; Adler & Co. v. Pruitt, 169 Ala. 221, 53 So. 315, 32 L. R. A. (N. S.) 889. Our main task arises in making application of these principles in the case before us. [3] Under the doctrine of respondeat superior liability exists only when the negligent act or omission causing injury is within the line and scope of employment. This applies to all cases alike. It rests upon plain principles of natural justice. Did the injury here arise from a negligent act of the subcontractor within the line and scope of employment? The contract related to the construction of the road-the doing of specified work. As incident to such work on a public highway, there was a public duty not to endanger the passing public by any negligence in construction operations, such as felling trees, blasting, or making dangerous excavations and leaving them unguarded and without danger signals. Such negligence, arising out of and The contract in writing between contractor and subcontractor required the subcontractor to furnish all material, labor, and equipment for the construction and completion of the work of clearing and grubbing, rock and earth excavation, and hauling slag and pipe, and providing grass shoulders for the road, all according to plans and specifications on file in the state highway department. The plans and specifications are made a part of the contract, but are not set out in the rec-incident to the road construction work, was ord. within the line and scope of employment, and would impose liability on the contractor, whether done by an employee or a subcontractor. The evidence shows that the subcontractor was engaged in work on the section of road sought to be closed to public travel; that the contractor, who retained the work of erecting Closing a road to public travel involves sevbridges and culverts and concreting the sur-eral factors distinct from road construction face, was not to begin until the subcontractor had completed work and turned it over to the contractor; that a short section had been turned over and concreted, and work on culverts was being done at another point, but at the point of the obstruction complained of the road was still under the control of the subcontractor in course of construction. The subcontractor, with relation to the work committed to him, was an independent contractor and not an employee. As a general rule, the law of respondeat superior does not obtain in such case. [2] An exception, however, obtains where a duty to the public exists in the manner of itself. The necessity therefor must be determined by the proper public authority, and a permit granted, unless it is a part of the contract made with such authorities. Detours must either exist or be provided. When the permit is obtained, the new duty of providing proper warning notices or barriers to advise the public that the road is closed comes into being. Closing the highway is a thing apart from the actual work of construction. We find nothing in the contract carrying authority to the subcontractor to assume this duty. If such authority is to be implied from acquiescence on the part of the contractor, the bur (102 So.) den of proof is on plaintiff to show knowledge. The duty to see that safe means of closing the road were employed could not arise without knowledge that some means were being used to that end. [9, 10] It became, therefore, a jury question whether the subcontractor, who, in this regard, must be treated as an employee, had implied authority to procure the order from the board of revenue, and proceed to close For all that appears, the permit to close the road by erecting barriers thereon. If so, the road was obtained by the subcontractor the original contractor would become liable on his own initiative, for his own protection and convenience, and the barriers complained of were erected without the knowledge of the contractor; that his first information thereof was obtained on investigation after the accident. for injury resulting proximately from the negligence of the subcontractor in the manner of erecting or maintaining such obstructions However strong the evidence may be to the effect that the obstructions were properly constructed, or that plaintiff had notice of the road being closed to public travel, there was evidence which made these issues proper for the consideration of the jury. [4] We do not think liability of. both contractor and subcontractor can be predicated on the theory of a joint enterprise. Such liability grows out of a joint relation to the It results that the application for rehearundertaking resulting in the injury. The re-ing should be and is hereby granted, the lation of contractor and subcontractor, each former judgment of affirmance set aside, the engaged in a different work at separate judgment of the court below reversed, and points on a common project, is not the rela- the cause remanded. tion involved in a joint enterprise as a basis for an action of tort. The joint liability here must rest on the law of respondeat superior, growing out of committing a nondelegable public duty to another. We think the evidence does not make a case of that sort. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. (4 Div. 166.) [5] The original suit having been brought against the contractor, and the subcontractor having been added by amendment, and ELBA BANK & TRUST CO. v. DAVIS et al. having failed to make out a case against the contractor, recovery could be had against neither. To do so would be to permit an entire change of parties defendant. [6] It was not a proper case for a motion for discontinuance. The original party was never stricken by amendment or otherwise. The cause went to the jury against both defendants. In this regard the case differs from Rarden v. Whiteside, 145 Ala. 617, 39 So. 576. It was proper to give the general affirmative charge as to both defendants. Under the evidence, as applied to the case in hand, a recovery could be had only against both or. neither. Affirmed. (Supreme Court of Alabama. Nov. 27, 1924.) 1. Equity 148(3)-Bill to cancel deed or declare it to be mortgage, asking for accounting and redemption of mortgage in alternative, not multifarious. Under Code 1907, § 3095, bill asking cancellation of deed, or that it be declared a mortgage, for an accourting and redemption of a mortgage in alternative, is not multifarious. 2. Usury 12-Act of lender in exacting unlawful interest constitutes usury, regardless of borrower's intent. Where lender knowingly and intentionally included a greater rate of interest in notes and mortgage than is legal under Code 1923, § 8567, there is usury, even though borrower does not ANDERSON, C. J., and SOMERVILLE and know he is contracting for or paying usurious THOMAS, JJ., concur. On Rehearing. BOULDIN, J. Upon further consideration the court has reached the following conclusions: [7, 8] The contract between the contractor and subcontractor carried implied authority -to do what was reasonably necessary and incidental to the work committed to the subcontractor. The nature of the work covered by the subcontract was such as to make it a jury question whether the closing of the road to public travel was a necessary incident to the proper performance of the work of the subcontractor. interest. Appeal from Circuit Court, Coffee County; W. L. Parks, Judge. Bill in equity by Jane E. Davis and G. E. Davis against the Elba Bank & Trust Company and the First National Bank of Elba. From a decree overruling demurrer to the bill, respondent Elba Bank & Trust Company appeals. Affirmed. By the amendment to the bill it is alleged, on information and belief, that appellee computed, charged, and included, in all of the several accounts, notes, mortgages, and other instruments which complainants executed to it, interest at a greater rate than 8 per For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |