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(100 So.)

7. Waters and water courses aw179(3)-Evl. ATLANTA & ST. A. B. RY, CO. V. KNIGHT. dence of injuries to stock from flowage held (4 Div. 123.)

competent.

In action for negligent erection of culvert (Supreme Court of Alabama. May 1, 1924.) over stream running through plaintiff's land,

evidence that plaintiff's cows and mule went 1. Pleading m64(2)-Separate causes of ac into wet, boggy land and died, and reasonable tion held not joined in same count for flow- market value of each, was relevant; there beage.

ing evidence that such injury would not have Count alleging negligent .construction of occurred except for negligent construction of culvert over stream running through plaintiff's culvert causing water to overflow. lands, causing constant' overflow, and averring

water courses injury as proximate result thereof, held not to 8. Waters and

179(6)— aver two causes of action,

Cause of loss of stock held for jury.

Where evidence conflicted as to whether 2. Waters and water courses em 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 In construction of culverts over streams properly left to jury. running across right of way, railroads are bound to use ordinary care not to obstruct flow 9. Appeal and error Om 1078(1)-Errors not of water from rainfalls which may reasonably argued and insisted on in brief, waived. be expected.

Errors assigned, but not argued and insista

ed on in brief, are waived.
3. Waters and water courses em 179(3)-Evi.
dence of conditions before and after construc-
tion of railroad culvert held competent.

Appeal from Circuit Court, Houston Coun-
In action against railroad for negligent

ty; H. A. Pearce, Judge. erection of culvert

stream running Action for damages by John C. Knight through plaintiff's land, plaintiff's evidence that, against the Atlanta & St. Andrews Bay Railafter be purchased, railroad company remov way Company for negligent erection of a culed large culvert prior to which there had been vert over a stream running through plaintiff's no overflow and erected smaller one, and that lands. Judgment for plaintiff, and defendsince small culvert was put in, in his best judgment, in ordinary times water stands on

ant appeals. Transferred from Court of Apsomething like six or eight acres of land, was peals under section 6, p. ,449, Acts 1911. relevant and competent.

Afirmed.

Espy & Hill, of Dothan, for appellant. 4. Evidence om 558(1)-Cross-examination of

Mullins & Martin, of Dothan, for appellee. expert as to proper fall of culvert held proper.

In action for negligent erection of culvert MILLER, J. This is a suit by John 0. over stream running through plaintiff's land, Knight against the Atlanta & St. Andrews where defendant's civil engineer measured cul- Bay Railway Company, a corporation, for vert just before trial and testified on cross damages for negligently erecting a culvert examination that it had about three inches'

over a stream running through his land, fall from upper to lower end, there was no error in allowing plaintiff to ask him whether which caused the water to overtlow some of in his judgment culvert should have had a fall his land, making it continually wet, boggy, of from six to ten inches.

injuring the land, caused trees on it to die,

and two cows and a mule, in a pasture in 5. Waters and water courses aww 179(3)-Evi- which is located this land, went into this wet, dence held competent on question of dam- boggy place, and could not get out and died, ages to land by flowage.

The jury returned a verdict in favor of the In action for negligent erection of culvert plaintiff', and from a judgment thereon by over stream running through plaintiff's land, the court this appeal is prosecuted by the decausing overflow, evidence, tending to show

fendant.
that plaintiff's land was wet and boggy, was
permanently injured, that trees growing there-

The original complaint contained
on died, and that adjacent cultivated land was count. Demurrers of the defendant to it
kept wet and unfit for crops, was proper.

were sustained by the court. The plaintiff

then amended by adding counts 2, 3, 4, 5, 6, 6. Waters and water courses a 179(3)-Evi- and 7. Demurrers of defendant to each of dence held admissible as showing knowledge these counts of the amended complaint were of defects in rallroad culvert.

overruled by the court. In action for negligent erection of culvert [1] The appellant insists these demurrers over stream running through plaintiff's land, to each of these counts should have been suswhere defendant's section foreman had testi

tained, because there was joined in one and fied as to condition of land, there was no er

the same count two separate causes of acfor in permitting cross-examination to whether plaintiff had ever asked him to open tion. This is the only ground mentioned and the culvert so that water would run off.

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

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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 The defendant pleaded the general issue,
water running through the land of plaintiff, and the cause was tried thereon by the jury.
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 testi.
ly 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 prac-
1921, 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 tend-
that 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 did not overflow, and its overflow was due to
count 2, except it claims $200 damages for the negligent construction of the small cul-
standing trees on this land that died as a vert as averred in the complaint, and it tend-
proximate result of negligence of defendanted to show permanent injury to and constant
in the construction of the culvert causing this overflow of the land. The defendant cannot
water to back and stand continuously on this justly complain at these rulings of the court.
land.

The defendant had full opportunity to cross-
[2] In the construction of culverts over examine the plaintiff thereon. Ala. Con. C. &
streams running across the right of way, I. Co. v. Vines, 151 Ala. 398, 44 South. 377;
railroads are bound to use ordinary care so S. S. S. & I. Co. v. Mitchell, 181 Ala. 576,
as not to obstruct, to the damage of others, 61 South. 934.
the flow of water from rainfalls, such as

[4] Will Crawford, witness for the defendmay be reasonably expected from frequent or ant, saw the culvert and this land of plainrare occurrences. Columbus & Western Ry. tiff just before the trial; was sent there Co. v. Bridges, 86 Ala. 448, 5 South. 864, 11 by defendant, and measured it; he has been Am. St. Rep. 58; South. Ry. Co. v. Plott, a civil engineer for 26 years. He testified 131 Ala. 312, 31 South. 33.

on cross-examination that the culvert had Each of these counts avers facts showing about three inches fall from upper to lower that duty owing by the defendant to the end. The court did not err in allowing plainplaintiff; each count avers a negligent con- | tiff to ask him, and for him to answer "that struction of the culvert which caused a con- in his judgment that culvert should have had stant overflow of water upon the land of a fall of from six to ten inches." He saw the plaintiff, and each count avers an injury as culvert, had had 26 years' experience as a a proximate result thereof, to the land, or civil engineer, saw the surroundings, was trees or stock of plaintiff. Each count states sent there to examine it by the defendant, a cause of action, and two causes of action and was competent and qualified to give an are not averred in either count. It appears with other evidence, tended to show the cul.

opinion, and this testimony, in connection by averment in each count that the stream

vert was not properly constructed so as to was obstructed during the year 1921, and now carry off the water from ordinary rainfalls. by a permanent culvert so small as to cause “The rule excluding 'opinions' as evidence is a constant overflow of water upon lands of not applied so strictly to questions of 'values' plaintiff, and to keep water thereon contin- and 'estimates' as to many other subjects." uously. S. S. S. & I. Co. v. Mitchell, 181 Ala. Mobile, Jackson & K, C. R. Co. v. Riley, 119 576, 61 South. 934; South, Ry. Co. v. Plott, Ala. 260, 24 South. 858; . Jackson Lbr. Co. 131 Ala. 312, 31 South. 33; Cent. of Ga. Ry. v. Cunningham, 141 Ala. 214, 37 South. 445, Co. v. Windham, 126 Ala. 552, 28 South. 392; I and authorities supra.

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(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 injury 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. & I. Co. v. Mitchell, 181 jury the written charges requested by the deAla. 576, 61 South. 934.

fendant, mentioned above. 10 Michie, Dig. p. [6] F. G. Renfroe, witness for defendant, 574, § 24 [Proximate Cause of Injury); and testified that he was section foreman of de-authorities there cited. fendant from September, 1918, to August, Prior to the construction of this small 1922, on the roadbed that ran through this culvert by defendant, it appears from certain land of plaintiff. It was low land; he ob- parts of the evidence that this land of plain. served the land during 1921; he knew the tiff was dry, and not muddy and boggy, and land where the pasture was located; did not after its construction water stood on five remember seeing any dead timber on this or six acres of it all the time, kept it wet, land; there was dead timber there before made it muddy and boggy, and the culvert 1921; the land there contiguous to the rail- was insufficient to carry off the water of road is generally low, dat land. The plain- usual and ordinary rains. This land was tiff on cross-examination asked him, over located in an inclosure used by the plainthe objection of the defendant, this question, tiff to pasture his cows and mule. Two “Did plaintiff ever ask you to open up this cows and one mule of the plaintiff, in culvert so the water would run off?" Witness the pasture, attempted to go through this answered:

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 this land was naturally low and wet, and complaint to Mr. Sherman about that. He

water remained on it naturally; and the wadidn't never come to me directly."

ter on it and its muddy and boggy condition

were not due to the negligent construction or The court would not exclude this evidence maintenance of this culvert by the defendon motion of defendant. It is evident that

ant. 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 culvert, which caused the water to back that this culvert did not carry off the water, up on this land of plaintiff in his pasture, that it needed to be opened, and the defend- kept it wet, and made it boggy with water ant's section foreman knew it.

remaining on it constantly. It was compe[1] The defendant objected to and moved tent and relevant for the plaintiff to prove to exclude the evidence showing that two that his two cows and mule were in this pascows and one mule of plaintiff went into this ture, walked into this overflowed land from Wet, boggy land, bogged up, died, and the rea- the culvert, got bogged up therein, died, and sonable market value of each, because this the value of each. The court properly redamage to the stock was not the proximate fused the written charges requested by the result of the water backing on the land defendant that if they believed the evidence caused by the defective construction of this they could not give plaintiff any damages small culvert by defendant. And for the for the loss of either of the cows or the same reason the defendant insists the court mule. Under the conflicting evidence and its erred in refusing written charges 1, 2, 3, and tendencies in this cause, the court properly 4, separately requested by it; that if the jury left the question of the right to recover dam. believed the evidence, they cannot give plain ages for loss of the cows and mule for the tiff any damages for the loss of either cow consideration and determination of the jury. or mule.

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;

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

claim against bankrupt estate and acceptance The judgment is affirmed.

of dividend held not novation or payment as Affirmed.

to original debtor.

Proof and filing of claim against bankrupt ANDERSON, C. J., and SAYRE and estate of company executing notes to claimant

for purchase price of goods sold and delivered GARDNER, JJ., concur.

to another company and acceptance of small dividend held not novation or payment of orig. inal debt.

once.

Appeal from Circuit Court, Tuscaloosa TUSCALOOSA LUMBER Co. v. TROPICAL County; Henry B. Foster, Judge. PAINT & OIL CO. (6 Div. 912.)

Action on the common counts by the Trop

ical Paint & Oil Company against the Tus(Supreme Court of Alabama. April 10, 1924. caloosa Lumber Company. Judgment for Rehearing Denied May 15, 1924.)

plaintiff, and defendant appeals. Affirmed. 1. Sales am 22(3)-Buyer repudiating con- The order for the goods in controversy is tract, but receiving, using, or selling goods, as follows: liable in assumpsit.

"The Tropical Paint & Oil Co., Cleveland, Buyer repudiating contract, but receiving,

Ohio, U. S. A: using, or selling goods, is liable in assumpsit, “Qrder No. 8

Date, Feb. 3, 1920. in absence of novation or payment; privity of "Name: Tuscaloosa Lumber Co. Business: contract, other than that arising from im- Street, Tuscaloosa, Ala. P. O. address, Tuscaplied promise to pay, being unnecessary. loosa; State, Ala. R. R. Town, Tuscaloosa: 2. Novation m7-Required proof stated.

State, Ala. Terms 30 da, net. County. As novation is never presumed and extin, purchaser's address shown above, use follow

If shipment is to go to a point other than guishment of original debt must appear, proof ing lines: Ship to R. R. town, that creditor, original debtor, and promisor in

State
Route:

Ship about: At tended to accept, and that creditor agreed to, new promise in discharge of original debt, is

"This order is placed with the understanding required.

that it is positive and not subject to change or 3. Novation em 12–Payment Om65(6)—Bur. countermand unless so specified hereon. Any

den of proof on party asserting novation or agreement not stated on this order will not be payment.

recognized. One asserting novation or payment has

"All accounts payable at the office of the burden of proving that such was fact and par- Tropical Paint & Oil Co., Cleveland, Ohio. ties' intention.

Package Be careful in specifying size of package 4. Novation en 12-Declarations and acts in

consistent with intent to hold original debtor and evidence of agreement to release him es

1 Ply Elastikite sential.

2 Ply Elastikite 100 Rolls

.12

3 Ply Elastikite In absence of express contract of novation,

50 Sqrs.

Individual Shingles creditor's declarations and acts must be inconsistent with intention to hold original debtor, and evidence must clearly show or be tanta- and samples for display. F. o. b. Chicago. All

"Please send full line of samples of roofing mount to agreement to release latter from sales are f. o. b. Cleveland, Ohio. liability.

"Signature of Purchaser: 5. Novation en 13 - Creditor's acceptance of

“Geo. W. Phalin Lbr. Co. promisor's notes in discharge of debtor's lla- "Salesman: R. J. Doyle," bility fact issue if testimony conflicting.

Brown & Ward, of Tuscaloosa, for appelWhether creditor accepted notes of third

lant. party in discharge of debtor's liability is issue of fact for judge trying case without jury, if

Foster, Verner & Rice, of Tuscaloosa, for testimony is confiicting.

appellee. 6. Accord and satisfaction @mi-Novation THOMAS, J. The action is in assumpsit.

1-Payment mw18Creditor's acceptance of Defendant pleaded in short by consent-the notes from third party held not accord or general issue, payment, accord, satisfaction, satisfaction, payment, or novation,

novation. The trial, had before the court Mere acceptance of notes from company without a jury and on documentary evidence not regarded by payee as worthy of credit at and testimony given ore tenus resulted in time of shipments and receipt of goods sold to judgment for the plaintiff. Motion to have another company, whose agreement with maker to receive materials and credit purchase the judgment set aside and a new trial grantprice on its account with maker were unknown ed was overruled. 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

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

Color

Price

200
200

Rolls
Rolls

.06
.09

1.60 2.00 2.40 7.75

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(100 So.) of the invoice price and unless there was al 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 was after receipt and sale of the first shipcase, in an action equitable in character. The ment, and after the second shipment had gone good morals are the reason for such liability forward, completing the shipment of the "carand its enforcement. Farmers' Bank & Trust load order” mentioned in plaintiff's letter of Co. v. Shut & Keihn, 192 Ala. 53, 68 South. February 10, 1920. It is uncontroverted that, 363; Heide v. Capital Sec. Co., 200 Ala. 397, notwithstanding the manner of signature to 76 South, 313; Dorsey v. Peppers, 202 Ala. the order, and the correspondence we have 321, 80 South, 403; Owensboro Wagon Co. v. adverted to, defendant received and sold both Benton Mercantile Co., 204 Ala. 415, 85 South. shipments of material and made claim for 723; First Nat. Bank of Dozier v. Farmers' excess freight charges by reason of circuiBank of Luverne, 207 Ala. 402, 92 South. 639; tous routings. Allen v. M. Mendelsohn & Son, 207 Ala. 527, We should indicate that on June 25, 1920, 93 South. 416. The order was dated Feb- defendant wrote G. W. Phalin Lumber Com. ruary 3, 1920, and immediately thereafter pany as follows: (February 10, 1920) plaintiff wrote defend

"We inclose herewith a letter just received ant confirming the arrangement made by its from the Tropical Paint & Oil Company and a salesmen giving defendant the right to sell copy of our reply to them. As we understood its products indicated within the counties the matter, you were to pay for this roofing of Tuscaloosa and Pickens, and concluded as and we are crediting your account for the follows:

“We inclose herewith credit memorandum "It is understood that this arrangement will showing that it was short four rolls of the two remain in force for a minimum of six months ply roofing, $8.00, and you should deduct this and as much longer after that as may be mu- in remitting. There should also be an adtually profitable and agreeable. We thank you justment in freight as this was not a carload." for the carload order you have placed with us through Mr. Doyle, shipment of which we will On July 10, 1920, plaintiff replied to de promptly make, and look forward with pleas- fendant's letter of June 25, 1920, as follows: ure to our relations with you."

"You wrote us on June 25th that you thought This “carload order” went forward in bro. the G. W. Phalin Lumber Company was to pay

for the shipment of roofing materials which ken shipments from two initial points, being

we sent you some time ago invoiced at $960.00. received by defendant on the respective dates Have you taken the matter up with them and of May 9, 1920, and June 30, 1920, unloaded what do they say in regard to payment ?" in its yards, and sold. On May 14, 1920, plaintiff wrote, as to payment of the first

Defendant replied to this last-quoted letshipment, to Tuscaloosa Lumber Company: ter' on July 14, 1920, as follows: "You have apparently overlooked statement

In reply beg to state that at the sent you covering your account of $960.00.

time we, wrote you on June 25th we sent the "Prompt payment by customers eliminates Geo. W. Phalin Lumber Company a copy of the expense of carrying long overdue accounts our letter to you, and also wrote them calling and enables us to furnish the very best ma

tbeir attention to the fact that they had chargterial at the lowest possible prices.

ed us with this material and that they were to "Will you kindly assist us in thus serving pay for the same, and they stated that they the trade in the best possible manner by send would give it prompt attention. We will call ing remittance promptly."

their attention again to the payment of this Plaintiff again wrote on June 4, 1920:

account, and it would be well for you to write

them also."
"We find you have not responded to our re-
cent request for payment of your account

On August 17, 1920, the plaintiff again amounting to $960.00.

urged the defendant as follows:
"As this amount is now 30 days overdue. we
would appreciate remittance or definite advice

"Are we to understand that the invoice for by return mail."

roofing which matured on July 30th is to be

handled the same as the $960.00 item, namely, On June 25, 1920, defendant replied as through the Phalin Lumber Company, would

say here that we have not had any remittance

from the Phalin people as yet on the large "In reply beg to say that while the car of item and it might be a good idea for you to roofing was invoiced to us and shipped direct take the matter up with them yourselves and to us, we understood that the G. W. Phalin get them to rush the check through, and if this Lamber Co. would pay for this charging it to $387.50 item is to be taken care of by them us and we are now taking the matter up with also, kindly call that to their attention.” them. "We certainly had no hand in the matter of

There was no immediate reply from defendordering this material and are satisfied they ant as to this letter. However, defendant of will give it their attention."

fered in evidence a correspondence between

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