Pensacola St. A. & Gulf S. S. Co. v. Brooks , 14 Ala. App. 364 ( 1916 )

PELHAM, P. J.

This is an action to recover damages brought under a Florida statute. The complaint claims damages in separate counts for two distinct injuries, each averred as occurring in the state of Florida. The trial was had before the judge without a jury. From a judgment for plaintiff, the defendant appeals.

(1) The statute relied on is set out in the complaint, and will be set out by the reporter. To each count the defendant filed pleas of the general issue and certain special pleas; but the issues upon which the case was tried make it necessary, in this connection, of the court’s rulings on the pleadings, to consider only the special plea numbered 4. This plea averred, in substance and effect, that plaintiff was guilty of contributory negligence' which proximately contributed to his injury, in this: That, as the said Albert Bivins was approaching him to pass with a wheelbarrow of coal, plaintiff stepped backward with his wheelbarrow to allow the said Bivins to pass, without looking to see where he would set his foot, and stepped into said open hatch and was injured. The plaintiff’s demurrer to this plea on the ground, among others, that the facts alleged did not support the conclusion of the pleader that the plaintiff was guilty of contributory negligence was sustained by the court.

We think the action of the court in this particular was free from error. The facts averred do not seem to us, as a matter of law, to constitute or show negligence. It may not be judicially declared, under such circumstances, that to step backward without looking first to see where one would set one’s foot is negligence. No facts are averred in the plea showing that such conduct on the part of plaintiff at the time of the injury was negligence; nor, indeed, does the plea aver that this action upon the part of the plaintiff was negligent, or that the plaintiff negligently stepped backward without looking in that direction.

“In every case, unless it be a case where res ipsa loquitur applies, the pleader must allege facts and in allegation draw the conclusion for which he contends.”—Evans v. Ala.-Ga. Syrup Co., 175 Ala. 85, 56 South. 529.

Furthermore, defendant had the full benefit of the matters contained in this plea under plea 5.—L. & N. R. R. Co. v. Turney, 183 Ala. 398, 406, 62 South. 885.

(2) Prior to the hearing of the cause the defendant made a motion for a continuance on the ground of the absence of certain material witnesses whom it had been unable to locate in order to perfect service of summons, or to take their depositions. The court refused to grant this motion, and required defendant to proceed with the trial. There was no error on the part of the court in refusing this motion.

“It is a well-established rule in this state that the granting or refusal of a continuance rests in the sound discretion of the trial court, and is not the subject of revision on appeal.—Wimberly, et al. v. Windham, 104 Ala. 409, 412, 16 South. 23, 53 Am. St. Rep. 70; Murph v. State, 153 Ala. 67, 45 South. 208.

We do not think the copies of the affidavits offered by defendant in support of its motion comply with the provisions of circuit, court rule 16, or that any abuse of the court’s discretion is shown.

(3-5) There was no error, in view of the objections assigned, in admitting the testimony of Dr. Peterson as to the physical condition of plaintiff a few weeks before the trial. The injury was averred as having been caused about 18 months prior to the time of the trial. The witness was admitted to be an expert, and was qualified to testify to the plaintiff’s present condition. It was not improper to permit the examination because of the time of injury, in view of the allegation of a permanent, continuing injury. This testimony was subsequently connected and rendered admissible upon plaintiff testifying that he had received no other injury to his foot, except the one examined by Dr. Peterson.

“While ordinarily in the introduction of evidence it should be competent at the time when offered, still, if rendered competent by the subsequent introduction of other evidence, this is sufficient to correct and cure any error that might otherwise have existed in the admission of the evidence first offered.”—Collins v. State, 138 Ala. 57, 62, 34 South. 993, 994.

It is also a well-established rule that, when a trial is had without the intervention of a jury, an error in the admission of evidence will not authorize a reversal, if the judgment rendered is sustained by legal evidence.—First National Bank of Talladega v. Chaffin, et al., 118 Ala. 246, 256, 24 South. 80; Woodrow v. Hawving, 105 Ala. 240, 16 South. 720.

(6-8) The introduction in evidence of the Florida statute on which the action was based was objected to by defendant. • These objections were based: First, on the unconstitutionality of the act; second, that the act was not shown to have been published by proper authority; and, third, that there was nothing to show that the act was a law at the time of the alleged injury. The act is not unconstitutional because of any of the grounds stated.— Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 40, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S. 226, Ann. Cas. 1912A, 463; L. & N. R. R. Co. v. Melton, 218 U. S. 54, 30 Sup. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84; Second Employers’ Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. The act in question was properly proven under the provisions of section 3988, Code 1907. We are not inclined to the view that the “face of the book” and the “title page” must coincide. Such a construction would, to our mind, require a holding entirely too narrow and strained. The purpose of the section is to safeguard the proof of statutes of foreign states in our courts. In this connection it is apparent that “face” is used in contradistinction to “cover.” We are of the opinion that, if the verification of the statute appears in the body of the book, it is sufficient. This opinion is strengthened by the physical condition or make-up of the book shown to exist in the instant case. It is evident that the title pages of the volume have been misplaced. These pages are not numbered, and yet are found interleaved between pages numbered 16 and 17. The third ground of objection is not insisted on in brief, and hence is waived.— Carolina-Portland Cement Co. v. Ala. Construction Co., 162 Ala. 380, 383, 50 South. 332; McClendon v. McKissack, 143 Ala. 188, 191, 38 South. 1020. However, the sections of the Constitution of Florida introduced in evidence demonstrate that the act went' into effect at the time of its approval. Otherwise the expression, “This act shall take effect upon its becoming a law,” is meaningless, and the constitutional sections introduced would have no field of operation.

The court did not err in refusing defendant’s motion for a new trial. Upon a consideration of all of the evidence, we are not led to the conclusion that the damages awarded in this cause are excessive. A consideration of the evidence set out appears to us to warrant the finding of the court. —L. & N. R. R. Co. v. Williams, 183 Ala. 138, 62 South. 679, 684, Ann. Cas. 1915D, 483. As is quoted by the court in that opinion: “The tendency in recent years has been for verdicts to award, and appellate courts to sustain, increasingly larger sums as compensation for personal injuries. This is attributable, no doubt, to the greatly decreased purchasing power of a dollar, as exemplified in the rise in the price of nearly all commodities, and the enormous increase in the cost of living, and, in some measure perhaps, to a higher regard for human life and the value of physical efficiency.”

(9, 10) There was no error in joining in one action two separate and distinct causes of action.—L. & N. R. R. Co. v. Cofer, 110 Ala. 491, 18 South. 110; Iron City Mining Co., et al. v. Hughes, 114 Ala. 608, 609, 42 South. 39; Birmingham Ry., L. & P. Co. v. Nicholas, 181 Ala. 491, 61 South. 361. Assuming, for the sake of answering appellant’s argument, that there was no evidence to support a judgment as to one of the causes of action, there was a general verdict or finding, and this will be referred to the count or counts supported by the evidence.—Shannon v. Lee, 178 Ala. 463, 467, 60 South. 9. As was said in Briel v. Exchange National Bank, 180 Ala. 576, 578, 61 South. 277, 278:

“The trial in the lower court was by the judge without a jury. * * * The decisive question was purely one of fact, * * * and * * * the conclusive force and effect of a verdict rendered by a jury, and the only inquiry we may here make is whether there was sufficient evidence to support the judgment. * * * “In such cases the rule is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony.’—Nooe v. Garner, 70 Ala. 443. And that should never be done ‘unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.’—Cobb v. Malone, 92 Ala. 630, 9 South. 738. As said in that case, the trial judge ‘has heard and seen the witnesses testify, observed their tone and demeanor, and' noticed their candor or convenient failure of memory to avoid impeachment, or for other improper purpose. The' appellate court, possessing none of those aids and advantages, and receiving the evidence on paper only, is less qualified to determine what evidence is worthy of belief, or what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses.’—92 Ala. 634, 9 South. 739.”

We find no error prejudicial to appellant in the record that would justify a reversal.

Affirmed.