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proper to refuse a charge on the requisites of There was no error in sustaining the objecan executed contract.

tion, by the plaintiffs, to the question to the (Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. 12; Dec. Dig. $ 3.*]

defendant, as a witness, “How much were

you getting for cutting and hauling this tim. Appeal from Circuit Court, Monroe County: ber?" The defendant had denied making the John T. Lackland, Judge.

purchase on his own account, and had stated Action by Self Bros. against J. R. Dees. that he was merely cutting and hauling the From a judgment for plaintiffs, defendant ap- timber for the Limestone Lumber Company. peals. Afiirmed.

It was immaterial to the issues in this case The bill of exceptions shows that the evi. what he was being paid for that service. dence tended to show that plaintiffs sold the The only counts in the complaint are on an defendant individually in June or July, 1907, account, for money loaned, account stated, all the pine timber standing and growing on a for merchandise, goods and chattels, sold by certain 120 acres of land in Monroe county at plaintiffs to defendant, for money paid by and for the price of $2.50 per 1,000 feet, said plaintiffs for the defendant at his request, timber to be cut and removed as early as pos- and for work and labor done. There is no sible; that the defendant had cut and remov- proof tending to sustain either one of the ed from said land between 118,000 and 120,- | counts, unless it be the first. An "account" 000 feet, on which plaintiffs had received a is a general term which covers any item of payment of $65.17, which payment was made indebtedness, by contract, express or implied. by the Limestone Lumber Company; that|1 Cyc. 362; 1 Am. & Eng. Ency. Law, 434, there was a balance of $225 due, with inter- and notes; 1 Words & Phrases, 87; Cave, est thereon; and that the agreement is not in Use of Wallace, v. Burns, 6 Ala. 780; Morri. writing. The evidence for the defendant tend-sette, Extr., v. Wood, 128 Ala. 503, 507, 508, ed to show that the sale was made to him for 30 South. 630. The first count, then, covers the Limestone Lumber Company, and that the indebtedness shown by the evidence of after the sale was made, under the direction the plaintiffs, unless it is subject to the objecof the Limestone Lumber Company, plain-tion raised by the appellant, to wit, that a tiffs pointed out the lines to the defendant, recovery cannot be had on the common count, and the defendant began cutting and hauling because the evidence shows a special parol the timber; that defendant cut and hauled contract, which should have been specially deabout 30 days, when plaintiffs stopped him, clared on, unless it had been fully executed, and said they were afraid that the lumber so that nothing remained save the obligation company would not pay them, and that they of defendant to pay the money. went to see the lumber company, and in a It is frequently laid down as a principle few days told defendant to go ahead with the that where two parties have entered into a cutting, and that defendant cut 15 or 20 days contract which is entire, and one has permore, when the lumber company failed, and formed a part of what he agreed to do, he he had not cut any more for them. The ob cannot recover on the common counts, but jections to evidence are sufficiently stated in must declare on the contract, and rely upon the opinion of the court.

his rights under it. It is also a principle that The following charges were refused to the when the contract has been performed on one defendant: “(1) The court charges the jury side, and nothing remains to be done but the that an executed contract is one that is com-payment of the money, a recovery may be pleted, and where nothing remains to be done had on the common counts. It is also true by either party to the contract. (2) The court that if the party suing has partly performed charges the jury that an executory contract the contract, and the other party has acceptis one where something remains to be done, ed the results of his work, he can recover the such as determining the price, quantity, or value of the same, on the common counts, exidentity of the thing sold.” (3) The affirma- cept in such cases where the acceptance of tive charge found for the defendant.

the work was unavoidable. Florence Gas, Barnett & Bugg, for appellant. McCorvey Electric Light & P. Co. v. Hanby, 101 Ala. & Hare, for appellees.

17, 32, 13 South. 343; Woodrow v. Hawving,

105 Ala, 241, 245, 16 South. 720; Stafford v. SIMPSON, J. This action was brought by Sibley, 106 Ala. 189, 191, 17 South. 324; Henthe appellees against the appellant to recover derson-Boyd Lumber Co. v. Cook, 149 Ala. for certain pine timber which, it is claimed, 227, 231, 232, 42 South. 838; Bell v. Teggue, was sold to the defendant and received by 85 Ala. 211, 215, 3 South. 861; Martin V. him. The evidence of the plaintiffs tended Massie, 127 Ala. 504, 29 South. 31. In the to show that the timber was sold to the de-last-cited case, the court held that a person, fendant individually, by a verbal contract, at after partly performing and abandoning an so much per thousand feet, and that he got a entire contract (there being no proof of voluncertain amount; the evidence being that de- tary acceptance), could not recover either on fendant bought all of the pine timber on a the contract or on common counts. The decicertain piece of land, but not showing wheth- sions generally, on this subject, relate to labor er what he got was all of said timber or not. or construction contracts.

TION,

It will be noticed that, in the present case, 13. TRIAL ($_91*) EXCLUSION OF EVIDENCE the party who is raising the question is not FROM JURY-NECESSITY OF PREVIOUS OBJECone for whom work has been done in partial

The exclusion from the jury, on motion, of performance of a contract, but the party him- testimony improperly admitted is not error, self who agreed to purchase all the timber, though movant did not object to the questions who has gotten a part of the timber, and of eliciting the testimony. course gotten the benefit of it; and he says Dig. ss 242-244; Dec. Dig. 8 91.*]

[Ed. Note.--For other cases, see Trial, Cent. that he should not be made liable in this form of action for the timber which he has actual. | 4. MASTER AND SERVANT (8 270*)-INJURIES

TO SERVANT-EVIDENCE. ly gotten, because he has not availed himself

In an engineer's action for injuries through of his privileges under the contract by taking the flying out of a lever, owing to the alleged it all. There is no proof that the contract was defective condition of a quadrant, testimony of entire, and that he was not to pay for any un gine 6 or 10 days after the accident the lever

a witness that while he was operating the entil he had gotten it all. There is no proof flew out was admissible to show the defective that the other party had in any way prevent condition of the quadrant. ed him from getting all of the timber. In (Ed. Note.-For other cases, see Master and fact, so far as the evidence shows, we do Servant, Cent. Dig. 8 917; Dec. Dig. $ 270.*] not see any field of operation for the princi- 5. APPEAL AND ERROR (81058*)--HARMLESS ple invoked to this character of contract.

ERROR-EXCLUSION OF EVIDENCE. There being nothing said about the time when dicial where the witness later testified as to the

The exclusion of a question was not prejuthe timber was to be paid for, the natural in- fact sought to be elicited by the question. terpretation would be that it was to be paid [Ed. Note.-For other cases, see Appeal and for as taken, and, as to each lot taken, the Error, Cent. Dig. 88 4200, 4201 ; Dec. Dig. 8

1058.*] contract was performed by the seller, and nothing remained but for the buyer to pay 6. MASTER AND SERVANT ($ 270*)-INJURIES

TO SERVANT — EVIDENCE – KNOWLEDGE BY the money, and a recovery could be had under

MASTER OF DEFECT. the common counts. Veerkamp v. Hurlburd

In a servant's action for injuries through C. & 0. Co., 58 Cal. 229, 41 Am. Rep. 265. a defective lever on an engine, testimony of a

It results that there was no error in the witness as to his failure to report to the master refusal to allow proof as to how much tim- when operated by him, was properly rejected, it :

the action of the engine, in respect to the lever, ber was left standing, nor in the refusal to not appearing that such was his duty. give the charges on the requisites of an exe [Ed. Note. For other cases, see Master and cuted contract, nor in the refusal to give the Servant, Cent. Dig. $ 923; Dec. Dig. $ 270.*] general charge in favor of the defendant. 7. APPEAL AND ERROR ($ 1058*)-HARMLESS The judgment of the court is affirmed.

ERROR-ExcLUSION OF EVIDENCE.

The exclusion of testimony covered by othAffirmed.

er testimony is not prejudicial.

(Ed. Note.--For other cases, see Appeal and DOWDELL, C. J., and MCCLELLAN and Error, Cent. Dig. 88 4200, 4201; Dec. Dig. 8 MAYFIELD, JJ., concur.

1058.*]
8. WITNESSES ($ 248*)-ANSWER TO QUESTION
-RESPONSIVENESS.

An answer not responsive to the question (165 Ala. 637)

is properly excluded. ALABAMA GREAT SOUTHERN R. CO. V.

[Ed. Note.-For other cases, see Witnesses, YOUNT.

Cent. Dig. $$ 861-863; Dec. Dig. § 248.*]

9. WITNESSES (8236*) — QUESTION CALLING (Supreme Court of Alabama. Feb. 10, 1910.) FOR SPECULATIVE ANSWER. 1. MASTER AND SERVANT (8 265*)-INJURIES

A question inviting a purely speculative anTO SERVANT-DEFECTIVE APPLIANCES-BUR- swer is properly disallowed. DEN OF PROOF.

[Ed. Note.-For other cases, see Witnesses, In a servant's action for injuries through Cent. Dig. $ 825; Dec. Dig. 8 236.* ] defective appliances, plaintiff has the burden of 10. WITNESSES (8 374*) — BIAS-STATEMENTS sustaining the essential averment that the de

BY WITNESS. fect arose from or was not discovered or rem

A question asked defendant's witness as edied owing to the negligence of defendant or to whether he told plaintiff's witness that the of some person for whom he was responsible.

latter's testimony would cost him five years was (Ed. Note.-For other cases, see Master and admissible as tending to show bias or interest Servant, Cent. Dig. 88 894–905; Dec. Dig. 8 in the cause. 265.*)

(Ed. Note.-For other cases, see Witnesses, 2. MASTER AND SERVANT (8286*)—INJURIES Cent. Dig. $ 1202; Dec. Dig. $ 374.*]

TO SERVANT DEFECTIVE APPLIANCES 11. MASTER AND SERVANT (8293*)-INJURIES QUESTIONS FOR JURY.

TO SERVANT-INSTRUCTIONS. In a servant's action for injuries, where In a servant's action for injuries through there was evidence from which it might have a defective machine lever, a charge denying the been inferred that notches on the quadrant of right to find from the evidence that defendant, defendant's engine were worn from use, wheth- or some person for whose fault it was responer the defect had existed for such time that de- sible within the liability act (Code 1907, § 3910), fendant was negligent in failing to discover it was negligent in respect of remedying the dewas for the jury.

fect if it was discovered was properly refused. (Ed. Note.-For other cases, see Master and [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. $ 1030; Dec. Dig. $ 286.*] | Servant, Cent. Dig. $ 1148; Dec. Dig. $293.*| •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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12. MASTER AND SERVANT (8 125*)-INJURIES, whether or not it is dangerous for an en.

TO SERVANT – KNOWLEDGE BY MASTER OF gineer to sit with his feet on the quadrant
DEFECTS_REASONABLE BELIEF IN FITNESS
OF APPLIANCES.

in front of a reversed lever.” (20) Appellant In a servant's action for injuries through objected to the following question, propounda defective machine lever, a charge avoiding ed to appellant's witness Fleming by the apthe imputation of negligence by reasonable belief of careful, prudent servants of the fitness

pellee: "Mr. Fleming, yesterday did you of the engine for service was properly refused, tell Mr. Hammond that his testimony on the reasonable or honest belief not being a factor in stand would cost him five years?" the ascertainment vel non of negligence.

The following charges were refused to the [Ed. Note.-For other cases, see Master and defendant: (9) “By the terms of the issues Servant, Cent. Dig. § 243; Dec. Dig. $ 125.*]

involved in this case, which are to be passed 13. TRIAL (8 194*) - INSTRUCTION-INVADING PROVINCE OF JURY.

upon by the jury, it is not shown that the The refusal of a charge declaring there is defendant had any knowledge of any de no evidence of a fact stated in the instruction ficiency in the engine, and the question was is not error.

confined to the inquiry as to whether or not [Ed. Note. For other cases, see Trial, Cent. the defendant was negligent in not using the Dig. § 454; Dec. Dig. § 194.*]

proper diligence and respect thereto, and Appeal from Circuit Court, Jefferson Coun- that for the want of diligence, or by reason ty; A. 0. Lane, Judge.

of such diligence, they were not informed of Action by J. B. Yount against the Alaba- the defects in the engine, if any there was. ma Great Southern Railroad Company for The question involved is one of diligence, or damages for personal injury. Judgment for not, and the defendant can be charged with plaintiff, and defendant appeals. Affirmed. it all only on the ground that his own negli

The facts sufficiently appear in the opin- gence or want of diligence, and such must ion of the court. Assignments of error 6, 7, appear, in order to hold the defendant in 8, 9, and 10 relate to objections sustained this case, and the burden of proof is on the by the court to questions propounded by ap- gence." (11) “If the jury believe from the

plaintiff to show such proper want of dilipellant to its witness P. I. Morgan, and contained in the assignment, as follows:

evidence that the defendant, through its

(6) “Now, I will ask you whether or not these servants or agents who had charge of the re notches here on the quadrant were much pairs on engine 198, were careful and compeworn anywhere on that quadrant." (7) "I tent men, and that these competent and carewill ask you whether or not, in your opinion,

ful men reasonably believed that said engine that quadrant and that latch were in good was safe and fit for running with safety and safe condition.” (8) “I will ask you whether security upon defendant's road in defendor not that quadrant and that latch are in ant's business, and it was allowed to so run,

and that after that the accident and injury good condition." (9) "I will ask you what condition you found the quadrant and latch occurred, without any knowledge to the de

fendant or to the men, competent and carein on that occasion.” The witness answered, “In first-class condition,” and the court ruled ful, who had charge of the repairs on said

engine, by reason of some defect in the enout the answer. (10) "State to the jury whether you found it in the same condition gine, or the neglect of some mechanic of the as it is now.” The witness answered, “Yes, company, the defendant cannot be held resir,” and the court ruled out the answer. Assponsible for the injury to the plaintiff.” signments 11 and 12 relate to objections sus A. G. & E. D. Smith, for appellant. Frank tained to questions propounded by appellant S. White & Sons, for appellee. to his witness Fleming, and were similar to assignments 9 and 10. Assignment 13 re MCCLELLAN, J. The case went to the lates to a questiop to an answer by the same jury on the third count, alone, and on pleas 1, witness, as follows: "I will ask you whether 2, and 3 as amended. This count declared on or not it is frequently the case that the lever negligence in respect of the way, works, mawill get away from an engineer, or will chinery, etc., in the usual form, the particu. jump out of the notch in running an engine.” lar aspect being that the notches in the Answer: "In my personal experience, I have quadrant, designed to hold the latch in place, had a good many to get away from me.” 14 were worn. The injuring agency, and that and 15 are questions to the same witness, and without dispute, was the flying out of the reare as follows: (14) “I will ask you whether verse lever of a locomotive, crushing, etc., or not, when a lever jumps out or flies out, plaintiff's foot, he being then the engineer in it is the fault of the engine or the engineer control of the engine. The reverse lever conwho is running it.” (15) “I will ask you trols the forward or backward motion of the whether or not, under ordinary conditions, engine. It works in practically a semicircle when an engine is in good condition and over what is called, mechanically, a quadrunning on the road, and the lever flies out, rant. The retention of this lever at a given is it the fault of the engineer who is run point on the quadrant is effected by means ning the engine.” (16) “I will ask you l of a latch,” which is pressed by a spring

against the quadrant and into notches there, by evincing a speculation, whether favorable in.

or unfavorable, on the answer of the witness. Pleas 2 and 3 as amended set up this as The rule invoked for appellant has no field contributory negligence of the plaintiff: That of operation where the court, on motion he negligently placed his foot in such posi- whenever made, excludes evidence previously tion as to be in the way of injury by the improperly admitted. The rule's purpose is flying out of the reverse lever. Again, in directed against one who is asserting error the latter plea, that he negligently operated because of the failure of the court to exthe engine in this: Improperly fastened the clude evidence given in response to a ques“atch" in the quadrant, or negligently ran tion to which appellant had not seasonably the engine with dry (unoiled) valves. All of objected. The inquiry here then, is whether the errors assigned and argued here relate to the evidence excluded on plaintiff's motion rulings in respect to evidence and to special was inadmissible, and, if so, no errors, in instructions refused to defendant (appellant). that regard, to appellant's prejudice were

On this record, it is clear that defect vel committed. non, as described in count 3, was a jury The first assignment assails the action of question. It is likewise clear that contribu- the court in refusing to exclude the testimotory negligence vel non, as charged in pleas ny of Hammond, plaintiff's witness, where2 and 3 as amended, were matters for the in he testified that he operated engine 198 jury's decision. There were tendencies in about July 16, 1907, the date of the injury the evidence to support the respective aver- here complained of, and that the reverse levments of the pleadings in the particulars just er flew out on one occasion when he was stated.

operating the engine. On the cross, he said Appellant insists that the affirmative char that flying out of the lever, referred to by ges—that concluding generally and that di- him, was “about 6 or 10 days after the accirected to a finding on the third count-re-dent in which plaintiff was injured.” We quested for it, should have been given. The think this matter was properly retained for chief and only debatable ground for this in the jury's consideration. Jones on Evidence sistence is that there was no evidence tend- (2d Ed.) 88 139, 156, 167, and notes. Its iming to support the essential averment, to sus mediate tendency, though of course its probatain which, the plaintiff, in such actions as tive force was for the jury to determine, this, always has the burden, that the defect was to show the alleged defective condition described arose from, or had not been dis- of the quadrant. The similarity between the covered or remedied, owing to the negligence described action of the lever when Hamof the master or of some person for whose mond, within 6 or 10 days, was operating derelictions the master is responsible. There the engine, and its action when plaintiff was was evidence from which it might have been injured thereby, was a circumstance tending, inferred that the notches on the quadrant if credited, to show the defective condition were “worn" from use. There was, of course, of the quadrant on the latterly mentioned foundation in the evidence justifying a con- occasion. Whether like conditions, in retrary inference, as well as tending to show spect of load on the locomotive, or oil in the that no defective conditions existed at all. valves, or the general operation of the locoGiven the first stated inference, it was, in motive, prevailed when each man was opconsequence, likewise open to the jury to erating the engine was matter for the crossfind that the alleged defect, produced by examination to develop. In this connection wearing from use, had existed for such time counsel insist that if this evidence of Hamas the failure to discern it, as might have mond was properly retained in the case, then been done by reasonably diligent care and in the testimony of J. M. McCarty, defendant's spection, constituted such want of care, in witness, wherein he was, on objection of the premises, as the statute prescribes. This plaintiff, not allowed to answer this question court ruled, upon like matter, in Birming- propounded by defendant: "Did you have ham Rolling Mill Co. v. Rockhold, 143 Ala. any trouble with the quadrant latch?" If it 115, 126, 42 South. 96, and held that the is assumed that like reason to that rendering question was for the jury. The affirmative proper the overruling of defendant's motion charges mentioned were properly refused. to exclude Hammond's testimony, as stated

Another feature of the argument for ap- before, required the allowance of the quespellant, applicable to several of the errors tion to McCarty, just quoted, the bill, by assigned, in respect of rulings in excluding recital, takes the point out of the assignment evidence, may be here considered. A num- based on the disallowance of the question. ber of questions, propounded by defendant, The recital is: "The witness subsequently to witnesses on their examination were not testified that during the time he worked on objected to plaintiff. After the questions engine 198 the lever did not fly out with were answered, motion was made, and sus- him." The time he ran the engine was "in tained by the court, to exclude the answers July, or the first of August,” 1907. from the jury's consideration. It is insist The questions propounded, on the cross, by ed that the court erred in these particulars defendant to Hammond, were properly disbecause plaintiff did not object to the ques- allowed. No ground of the objections there

One of the questions was based on an un- | leged declarations of the witness Fleming to founded assumption of what the witness had Hammond tended to show Fleming's bias or already testified. The other questions sought interest in the cause. to elicit evidence in reference to his failure Charge 9 denied the right to find from the to report the action of the engine, in respect evidence that the defendant, or some person to the lever, when operated by him. There for whose omission in that regard the de was then no evidence in the case that such fendant was responsible within the liability was his duty, even if his conclusions in the act (Code 1907, § 3910), was negligent in repremises were admissible for any purpose. spect of remedying the defect if it was dis

Assignments 6, 7, 8, 9, and 10 relate to covered. Furthermore, the charge is not rulings disallowing questions propounded by clear. Again, it is by no means certain that defendant to its witness Morgan. What pur- the charge does not exclude the idea that ported to be, according to defendant's evi- negligence intervened in the failure to disdence, the quadrant described in the count cover the defective condition described in the was before the jury. The essence of the third count. In addition, the charge might jury's duty was to decide whether it was in have misled the jury to believe that the a defective condition when plaintiff was in- defendant, itself and alone, could be neglijured. It was the effort to show by Mor- gent in the premises, whereas it may be, of gan, an expert, that this quadrant was in course, responsible for the derelictions of "good condition,” that its notches were “not those charged with duties, in the premises, much worn,” that it was, on the trial, in a by defendant. "good, safe condition," that it was, on the Charge 11 was bad, and was well refused. occasion, in "first-class condition.” Morgan, Besides being involved, it would avoid the having testified to facts tending to show that imputation of negligence by reasonable belief the quadrant was as it was when plaintiff of careful, prudent servants, so engaged, of was injured, further said “that he tested the the fitness, etc., of the engine for service. quadrant and the latch to see if they were Reasonable or honest belief is not a factor in case hardened and if they had the right radi- the ascertainment vel non of negligence. L. us, and to see if they were in good condi- & N. R. R. Co. v. Young, 153 Ala. 232, 237, tion; that he found by the test that they 45 South. 238, 16 L. R. A. (N. S.) 301. It can were properly case hardened, had the right never be error, this court has held, to refuse radius," etc. A careful reading of the entire a charge declaring there is no evidence of a testimony of this witness discloses the fact fact stated in the instruction. Tutwiler v. that the matters complained of in these as- Burns, 49 South. 455, 458. signments were without prejudice to defend Every assignment urged in argument has ant because fully covered by testimony of been considered. No error appears.

The the witness admitted in evidence.

judgment must be affirmed The rulings assailed in assignments 11 and Affirmed. 12 were innocuous. The matter excluded was covered by other testimony of the wit DOWDELL, C. J., and SI PSON, AN

DERSON, MAYFIELD, and SAYRE, JJ., The answer of the witness Fleming, quot- concur. ed in assignment 13, was not responsive to the question, and was well excluded, because illegal.

(165 Ala, 399) The question to the witness Fleming, set WESTERN UNION TELEGRAPH CO. V. out in assignments 14 and 15, obviously in

WEST. vited a purely speculative answer. Besides,

(Supreme Court of Alabama. Feb. 10, 1910.) the witness, testifying as expert, stated the conditions and causes productive of the fly. i 1. TELEGRAPHS AND TELEPHONES ($ 67*)—

DELAY IN DELIVERING MESSAGE-DAMAGES. ing out of a reverse lever on a running en In an action against a telegraph company gine.

for failure to deliver a message sent by plainWhether to place the feet in front of the tiff to her brother-in-law, which announced the lever on the quadrant is a dangerous thing death of her husband by stating that his brother

was killed, and that he should come at once, for an engineer to do was a conclusion, and as assistance was needed, the character of the the question to that end (assignment 16) was message was such that it was proper for plain. well disallowed. That was a matter within

tiff to prove that she was deprived of the aid

and comfort of her brother-in-law. the issues on plea 2, and it was for the jury

[Ed. Note. For other cases, see Telegraphs to determine whether the act indicated was

and Telephones, Cent. Dig. § 65; Dec. Dig. $ dangerous. Whether so or not was not with-67.*] in the legitimate field of expert opinion in

2. TELEGRAPHS AND TELEPHONES (8 67*) this case.

FAILURE TO DELIVER MESSAGE-ACTION FOR Assignment 17 is similar to assignments 6 DAMAGES-EVIDENCE. to 10, and is, like them, without merit.

It was error to permit plaintiff to show

that she had two small children, and that she The question quoted in assignment 20 was

and the two children were deprived of the comproperly allowed, on the theory that the al fort of her brother-in-law, since the message did

ness.

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