Sweeny v. Bienville Water Supply Co. , 121 Ala. 454 ( 1898 )

DOWDELL, J.

— The appellant, plaintiff in the circuit court, sued defendant for damages for malicious prosecution. There Avas a jury and verdict for the defendant. Certain exceptions Avere reserved to the court’s rulings on the trial. The bill of exceptions does not purport to set out all of the evidence.

The plaintiff on the trial below reserved exceptions to certain parts of the oral charge of the court. These particular portions so excepted to by the plaintiff are pointed out in the bill of exceptions; the bill, also, sets out in full the oral charge as given by the court. The rule now seems to be well settled, that when exceptions are taken to isolated portions of the oral charge of the court, such isolated parts should be taken and construed in connection with the charge as a whole, and when so taken and construed, if the parts excepted to, though positively erroneous when standing alone, are so explained and modified by the context as that the law- is truly stated, there is no ground for reversal.-Richmond & Danville R. R. Co. v. Weems, 97 Ala. 270; Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141; Harkins v. Hudson, 45 Ala. 482; A. G. S. R. R. Co. v. Hill, 93 Ala. 514; Rogers v. State, 117 Ala. 9; Simpson v. State, 111 Ala. 6; Jackson v. State, 106 Ala. 12.

The bill of exceptions recites that the plaintiff excepted to that portion of the court’s general charge to the jury which states, “that there Avas no probable cause to believe that the offense of disorderly conduct had been committed by John P. Sweeny.” This standing alone would have been erroneous, as clearly invading the province of the jury. But take the connection in which it was said by the court, to-wit: “The burden is on the plaintiff to make out his case .and there are two things that he has undertaken to establish and he says that he has established them-by the evidence'in this case. That is, that there was no probable cause to believe that the offense of disorderly conduct had been committed by John P. Sweeny,” and it is evident that the above criticism is not warranted. Besides, if there Avas error it Avas in favor of the plaintiff and not prejudicial to him. We have carefully examined the other isolated parts excepted to, in connection with that portion of the general charge with which they are connected and we fail to find any reversible error.

It is, also, a Avell established rule, that Avhere the hill of exceptions does not jrarport to set out all of the evidence in the case, it. will be presumed that a charge given was not abstract. — 1 Brick. Big. 336, §12. It cannot be said that the Avritten charge designated as “a,” “b,” and “c,” given at the instance of the plaintiff, do not contain correct propositions of law, and were properly given by the court, if there was evidence to support these charges and to which they might be referred, and it will be presumed that there AAras such evidence, when the bill of exceptions does not purport to contain all the evidence introduced on the trial, or some statement equivalent in effect to setting out the whole evidence in the bill..

There Avas evidence tending to show that the bill sent by defendant to plaintiff on November 1st, 1895, was sent through mistake, and when the plaintiff offered his check in payment of the same, the defendant declined the check and took up the bill, explaining to plaintiff that the same had been sent him through mistake.

’ There had been no payment of the money by the plaintiff or acceptance of the same by the defendant, and under the particular facts in this case, no binding contract had been executed by the parties, such as Avould prevent the defendant from declining and refusing to supply the water according to rates expressed in the bill which had . been sent the plaintiff by mistake. It would'be á strange doctrine to hold that a party cannot Withdraw a proposition of contract made through an innocent mistake, where no rights have arisen or injury resulted under The proposition. The written charge requested by the plaintiff numbered one invoked such a doctrine and was properly refused by the court.

The plaintiff might have owned the pipe from' the main to the sprinkler and the trough, and still under the ■ contract for the supply of water the defendant might have had the right of exclusive use of the stop cock at the curb, and as the bill of exceptions does not set out all the evidence, we cannot presume that such a state of facts did not exist. Charges two, three, four, and six, requested by the plaintiff are opposed to this view and were properly refused. Charge five requested by plaintiff, ignores the proposition of probable cause for suing out the warrant, and is for that reason bad. A charge • substantially the same as this one was held bad in the case of Jordan v. A. G. S. R. R. Co., 81 Ala. 220.

The affidavit sets out á statement of facts, upon 'which the officer issued a warrant of arrest for disorderly conduct, and for this offense he was prosecuted. The fact that the affidavit was defective would not preclude the defendant when sued for malicious prosecution, from his defense of probable cause, as to the pífense for which the plaintiff was in fact prosecuted under the affidavit and Avarrant. Affidavits sued out before, justices of the peace are not required to be as accurate and precise as an indictment.-Rhodes v. King, 52 Ala. 272.

There was evidence tending to show-that the plaintiff had been furnished with the rules of the defendant'company as far back as 1892. This rendered the rulés of the company offered in evidence admissible.

This action was based on an alleged malicious prosecution had under a city ordinance of the city of Mobile, find Ave are unable to see why the ordinance is not relevant and competent under the issues involved in the suit. ■ ■

■ As to what it cost the defendant company to- supply Avater, or the per cent made on the cost of production, we think was foreign to the issue. It in no manner elucidated the question as to Avhether the defendant’s prosecution of the plaintiff Avas without probable cause and malicious.' ' ' ’

The action of the court in overruling plaintiff’s objection to the question asked the witness by defendant, “what was the stop cock box for,” if error, was without injury.

We find no. error in the record, and the judgment of the circuit court is affirmed.