Morris v. Corona Coal Co. , 215 Ala. 47 ( 1926 )

(1) The pleading and evidence have been re-examined. It is the opinion that the given charges 2 and 3 for appellant and the oral charge of the court fully and fairly covered the matter sought to be embraced in refused charge 7. In the oral charge the court said of the appropriate count of the complaint that set out in detail the nature of the alleged injury:

"Were the lands of the plaintiff damaged as complained of in his complaint and under the conditions alleged in the complaint so that the defendant would be liable? If so the plaintiff is entitled to a verdict. * * *"

In view of the given charges indicated and this oral instruction when referred to this count of the complaint, there was no reversible error in refusing charge 7.

(2) In connection with the question, "What kind of a dam have you got there?" to J. B. Thomas, the general superintendent for the De Bardeleben Coal Company, the objection of plaintiff being interposed, the defendant replied to the objection made, "that it would prove the dam is in the same condition as it was at that time." The court then stated to respective counsel, "That contingent on that proof the objection was overruled," to which action the plaintiff duly excepted. In this there was no error. The offer to show the "like condition" was overlooked in examination of record on original hearing. The rule that the admission of evidence prima facie irrelevant may be cured by the subsequent introduction of the necessary preliminary or connecting proof, long prevailing in this jurisdiction, was thus complied with on the trial. Standard Motor Co. v. McMahon,203 Ala. 158, 82 So. 188; Bigham v. State, 203 Ala. 162, 165,82 So. 192; McCoy v. Watson, 51 Ala. 466.

(3) The writer is of opinion that the cross-examination sought of the witness Fies might have been properly permitted. However, a re-examination of the record as illustrating the ruling complained of convinces us that there was not an abuse of discretion by the trial court and the denial of the right of a due cross-examination of the witness. This follows from the admissions of the witness that he was very much interested in the defense of the suit and that he had been rather active about or "in the preparation of the defense" of the instant suit. Thus was the interest or bias of the witness sufficiently shown. Nations v. Harris, 214 Ala. 339, 108 So. 29.

The application for rehearing is granted, and the judgment of the circuit court is affirmed.

Application granted; judgment affirmed.