(98 So.)

to take charge of the work, and that he | question of the superintendence intrusted to would get some fellows to help me. I took Jimmie Savage. One phase of the evidence charge of the work," etc. "I never heard him give any instructions to any of the men. He would tell me what to do and I would go do it, and if I needed help I would call on the other fellows to help." "I don't know that anything was said by Mr. Doby about my becoming foreman" nor "that he wanted to give me supervision over the hands, more than to help me, and for me to work them." He further testified that plaintiff had worked around on other scaffolds; that he never heard any instructions for him to keep off scaffolds; and that on the occasion of the injury witness directed him to get on the scaffold and help put up the ceiling.

would indicate that he was a mere colaborer and all were under the superintendence of defendant, and another that he was foreman in charge of the men and work in the absence of defendant. We have already intimated that whether the defect in the platform arose from want of proper material was also a jury question. 4 Labatt's Master and Servant, § 1497b, note e. It follows that the general affirmative charge requested by defendant as to each count, and the like charge requested on the whole case, were properly refused.

[5] A witness may testify in a direct way touching his position or relation to a business, such as manager, superintendent, foreman, employer, employee, and the like. Hence, there was no error in allowing the question to witness Jim Savage, viz.: "Were you foreman in fact?" Choctaw Coal & Mining Co. v. Dodd, 201 Ala. 622, 624, 79 South. 54.

An employee receiving an injury while engaged in work wholly apart from the service for which he is employed cannot recover therefor. This is a just and wholesome rule of law. The basis of the rule, in last analysis, is that as to such work the injured is a volunteer, the relation of employer and employee is wanting, and no duty exists to provide a safe place to do work he is not engaged to do. Georgia Pacific Railroad Co. v. Propst, 85 Ala. 203, 4 South. 711; South-construction of that building and anything ern Railway v. Guyton, 122 Ala, 231, 25 South. 34; L. & N. R. Co. v. Pettis, 206 Ala. 96, 89 South. 201.

Does the undisputed evidence in this case show that plaintiff came within this rule as matter of law at the time of his injury? Without a further review of the evidence, we think several inferences were open to the jury as they may find the facts to be. It may be inferred that plaintiff was a mere "helper," in the technical trade sense, to wait on the other men or on Savage, or that he was a helper in the sense of being under and subject to the direction of a foreman.

Again, if employed and instructed to do a special work, it may appear from the evidence that under the direction of the foreman plaintiff's sphere of labor was extended, as the work progressed, with the knowledge and acquiescence of defendant. Under still another view, it may be inferred that after the more hazardous outside work was done, and owing to a shortage of hands, the defendant directed plaintiff to "help Jimmie" in a broader sense than at first. Taking the evidence as a whole, we conclude the issue on the scope of plaintiff's employment at the time of the injury was clearly one of fact for the jury.

[6] On the other hand, a witness cannot state his opinion as to whether he supplied "reasonably sound and good lumber for the

necessary about it." This is opinion evidence on the question of his performance of the legal duty at issue. A. G. S. R. Co. v. Flinn, 199 Ala. 177, 74 South. 246.

[7] There was no error in refusing defendant's charge No. 9. It is elliptical and involved. It ignored the evidence above pointed out tending to show a waiver or modification of the instructions given. It also invaded the province of the jury. One issue before them was whether such instructions were a part of the contract agreed to by both parties defining the scope of plaintiff's employment, or were warnings in the nature of rules prescribed by an employer for the safety of the employee. If the latter, they must be set up under pleas of contributory negligence. Doullut & Williams v. Hoffman, 204 Ala. 33, 86 South. 73; Shelby Iron Co. v. Cole, 208 Ala. 657, 95 South. 47.

No rulings on such pleas are here presented. As stated, the charge was properly refused as misleading in that it ignores one or more phases of the evidence.

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

ANDERSON, C. J., and SOMERVILLE [4] We reach the same conclusion on the and THOMAS, JJ., concur.

In determining the propriety of giving the general charge, the evidence offered by the party against whom it is given must be taken as true.

3. Principal and agent 20(2)-Evidence of agent's acts in trying to collect rent held admissible to show agency in action for injuries therefrom.

In an action by the wife of a tenant for trespass and personal injuries, caused by defendant's agent in seeking to collect overdue

rent, evidence of an attachment proceeding to collect the same rent, and the agent's activities, in connection therewith, and his threats to seize the furniture, put plaintiff and her children out in the street, and arrest her husband, if he objected, was competent to show his agency for defendant.

the affirmative charge may not be given, as
his credibility is for the jury.
8. New trial

143(5)-Impeachment of verdict by evidence of what juror thought held improper.

Evidence of what a juror thought, or why he agreed to a verdict, may not be received to impeach the finding.

9. New trial 143(5)-Questions put to juror to impeach quotient verdict held proper.

In examining jurors, to determine whether a quotient verdict had been rendered, questions as to whether the jury agreed in advance to find a verdict for whatever amount resulted from dividing the sum of 12 amounts by 12, and whether they afterwards agreed thereon, were proper.

10. New trial 52-Quotient verdict required grant.

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Lillian M. Plemmons against the New Morgan County Building & Loan Association. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint charges, in substance, that plaintiff, with her family, occupied a certain described dwelling house in Decatur, Ala., under a rental contract with defendant, for whom T. M. Dix was the rental agent; that Dix, while acting as such agent, and in the line and scope of his authority, came to said premises, and, after being informed by plaintiff that her husband was down town, “proceeded to abuse and make disparaging remarks about plaintiff's husband, and to make threats that he, as agent, or that his principal, would haul off plaintiff's furniture and household goods and provisions, and sell and dispose of the same, and would arrest plaintiff's husband, and would

* *

4. Principal and agent 194 (2)-Instruction limiting liability to acts of agent, abusing tenant's wife while attempting to collect rent, to acts expressly authorized, properly refused. In an action by the wife of a tenant for trespass and personal injuries, caused by abusive words and activities of defendant's agent in seeking to collect overdue rent, an instruction limiting defendant's liability to "acts within the scope or purview of authority conferred by defendant" was misleading, since implied authority was sufficient to hold the principal. 5. Trial 253 (9), 260(8)-Instructions ignor-eject plaintiff and her family from said Ing evidence and containing matters covered building, and leave them without any houseby oral charge held properly refused. hold goods, wearing apparel, or anything to eat; that when said T. M. Dix first began to inquire about plaintiff's husband, plaintiff informed him that she was not well; that she did not feel able to talk to him, and asked him to leave the prem

Instructions which were covered by the oral charge, and which ignored certain phases of the evidence, in an action for abusive remarks and conduct while attempting to collect rent, held properly refused.

* *

*

6. Trespass 13-Agent to collect rent must ises"; that, although Dix "was so advised leave when requested.

The agent of a landlord, sent to collect overdue rent, should have left the premises immediately after the tenant's wife notified or requested him to do so; he having made known his mission and failed to collect.

and requested to leave, he continued to remain in said house without legal cause or good excuse therefor," and persisted in interrogating plaintiff about various articles of furniture, and in making threats that he or his principal would take said goods, throw plaintiff in the streets, arrest her husband, etc. And it is alleged that, because of this conduct of Dix, acting as such agent, Although a witness may use contradictory plaintiff was thrown into a nervous state, expressions on direct and cross-examination, from which she suffered the illness and in

7. Trial 140(1)-Credibility of witness making contradictory statements must be left to jury.

(98 So.)

jury alleged. These requests for instruction, simply to gratify his own feeling of resentment, were refused to defendant:

In the instant case there was more than mere offensive words (L. & N. v. Bartee, 201 Ala. 539, 86 South. 391, 12 A. L. R. 251; Republic Iron & Steel Co. v. Self, supra); there 16. The court charges the jury that a person was the continuing act, the presence against has a right to go upon rented premises for a lawful purpose, and he is not rendered a tres- fense to her therein by act as well as words. the will of plaintiff in her home and the ofpasser or wrongdoer for failure to immediately leave upon notice or demand before the expira- In New Morgan County Building & Loan Astion of a reasonable time for him to transact sociation y. Plemmons (Ala. Sup.) 97 South. the business for which he may have rightfully | entered, or to have given the notice or made the demand for which he may have rightfully entered.

this rent. I know of no part that Mr. Dix, reference, no doubt, was to charge 4 (being took in the attachment proceeding, other than duplication of assignments of error), and he was helping to run the attachment and help- will be so considered. It was fairly covered ing to work it up." by given charge 13 and by the oral charge.

[1-3] The affirmative charge is properly refused, when there are inferences that may be drawn from the evidence unfavorable to the party to the suit requesting such charge, and in determining the propriety of the general charge the evidence against whom it is given must be taken as true. McMillan v. Aiken, 205 Ala. 35, 40, 88 South, 135. The attachment proceeding to collect the same rent that was due, and which Dix was trying to collect at plaintiff's house on the occasion in question, together with plaintiff's testimony that he said the rent was due the New Morgan County Building & Loan Association; that "he would have to take the furniture, after he asked what furniture I had; would have me put out in the street with my children, and if my husband objected he would have him arrested; he would levy on the furniture and everything we had, and leave me without a place to stay"-was competent evidence. There was no error in admitting evidence of the activities of Dix in and about the issue and levy of the attachment on the property of plaintiff and her husband for the collection of the rent. The testimony was limited to the question of agency. Jebeles, etc., Co. v. Booze, 181 Ala. 456, 62 South. 12.

[6] Charges 15 and 16, refused to plaintiff, misplaced the burden of proof as to the duty of Dix to immediately leave the premises after notice and after having made known his mission, and having failed in his mission to collect the rent. He should, thereupon, have departed immediately, as the jury were instructed it was his duty to have done.

[7] Although a witness may use contradictory expressions in testifying-on direct and cross-examination-the affirmative charge may not be given, for the credibility of the witness is for the jury. Jones v. Bell, 201 Ala. 336, 77 South, 998.

[8] After a careful examination of the evidence bearing on the ground of the motionthat the result was a quotient verdict-we are of opinion that it is well founded. Southern Ry. Co. v. Williams, 113 Ala. 620, 21 South. 328. The rule is that evidence of what a juror thought or why he agreed to a verdict may not be received to impeach the finding; such evidence has been admitted to sustain the action of the jury in returning such verdict. Leith v. State, 206 Ala. 439, 90 South. 687; Ala. City, G. & A. Ry. Co. v. Lee, 200 Ala. 550, 76 South. 908; B. R., L. & P. Co. v. Clemons, 142 Ala. 160, 37 South. 925.

witness Eaves as follows:

"Q. Mr. Eaves, was there any agreement, before you put down those figures and divided them by 12, that the jury would return a verdict for the amount that was shown by the division? A. There was not.

[9] It was competent, against defendant's [4] There was no error in refusing defend-due objections and exceptions, to examine the ant's charge L. It was misleading in the use of the words "by acts within the scope or purview of authority conferred by defendant." (Italics supplied.) It was not required that Dix had been given express authority | to act as he did in and about the collection of the rent for defendant; it being sufficient that he was acting for it with authority, express or implied, for the collection of rents due defendant, and while so doing acted as and said what he did. Moreover, the matter was sufficiently covered in the general charge of the court.

[5] Charges 17 and P. requested by defendant, ignored a tendency of the evidence that Dix, under the circumstances indicated, made the threats or did the objectionable acts after he was requested or ordered to leave plaintiff's home, and the effect of such language or acts, done and said, under the cir cumstances, on plaintiff to her alleged injury.

Defendant's refused charge 3 sought to ignore the phase of the evidence that the acts and words of Dix were done and spoken in a rude, insulting, and rough manner; thus was the refusal justified. Moreover, the jury were properly instructed in the oral and in a given charge.

"Q. After these 12 amounts were put down and divided by 12, did the jury all agree on the verdict that was rendered? A. Yes, sir."

The questions were not specific in showing that individual jurors did not agree that they would respectively vote for a verdict in amount indicated by the quotient in evidence and returned into court with their verdict; that is, the questions merely show what the the jury agreed as a body it would do, and the evidence convinces us that the individual jurors agreed in advance to abide by the result. B. R., L. & P. Co. v. Moore, 148 Ala. 115, 130, 42 South. 1024; Ala. City, G. & A. Ry. Co. v. Lee, 200 Ala. 550, 553, 76 South. 908.

[10] The motion for a new trial should have been granted on the ground that a quotient verdict was returned. The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Charge 5, refused to defendant, is not to

ANDERSON, C. J., and SOMERVILLE and

(98 So.)

WINDHAM v. WILSON. (6 Div. 969.)

(Supreme Court of Alabama. Nov. 15, 1923.)

lien.

executed on February 16, 1915; each instrument conveying the crop to be raised in Lamar county during the year 1915.

The crops in question were raised on the 1. Chattel mortgages 17-Crops must be place of a Mrs. Atkins; J. W. Coleman was contemplated product of land in which mort-residing upon this place at the time the mortgagor has definite present interest before gage was executed, and had so resided as mortgage on crops creates superior specific the tenant of Mrs. Atkins the previous year. There was evidence tending to show that J. W. Coleman had not actually entered into a rental contract with Mrs. Atkins for another year, but had held over from the previous year, and made the rental agreement about a month after the execution of the mortgage. After he had rented it J. W. Coleman entered into a contract with his brother L. C. Coleman (who at the time lived elsewhere), whereby he rented him part of the place on halves.

To create a specific mortgage lien on crops such as will prevail against third persons subsequently acquiring a specific interest therein, the crops must be the contemplated product of the land in which the mortgagor had at the time a definite present interest as distinguished from a mere possible or expectant future interest.

2. Chattel mortgages 17-One holding over held to have sufficient interest in land to validate mortgage on crop.

Where defendant, who had rented land for the previous year, remained in possession and was holding over after the expiration of his lease, made a crop under a rental agreement made about a month after his execution of a crop mortgage, held, that his interest in the land was sufficient to render his mortgage valid.

3. Trover and conversion 34 (5)-Plea of not guilty puts in issue every defense except release.

With the exception of a release, the plea of not guilty in trover puts in issue every matter pleadable in bar.

4. Chattel mortgages 229(2)
that mortgage was procured by fraud admis-
sible under plea of not guilty in trover by
mortgagee.

In trover by chattel mortgagee for conversion of mortgaged crop, defendant's evidence that the mortgages were procured by the false representations of plaintiff's agents as to their contents was admissible under the plea of not guilty, without a special plea of fraud.

The defendant offered to show that at the time of the execution of these instruments, the plaintiff made representations to each of the makers thereof that the instrument was only a note and not a mortgage, but the objection to this evidence was sustained, to which ruling the defendant duly excepted.

For report of the case on former appeal, see Wilson v. Windham, 206 Ala. 427, 90 South. 791.

J. C. Milner, of Vernon, and Hill, Hill,

Whiting & Thomas, of Montgomery, for appellant.

Norman Gunn, of Jasper, and Kelley & Sims and Guy Redden, all of Vernon, for appellee.

PER CURIAM. It is insisted that the mortgages on the crops for 1915 were invalid, as the mortgagors had made no rental contract, had no interest in the land at the time, and that therefore the crops had no potential existence.

[1] The rule is recognized that to create a Appeal from Circuit Court, Lamar County; specific lien on crops, such as will prevail T. L. Sowell, Judge.

against third persons who subsequently ac

pear that such crops were the contemplated

Action by A. S. Wilson against R. V. Wind-quire a specific interest therein, it must apham. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Re

versed and remanded.

The suit is in detinue and trover for the detention or conversion of 160 bushels of corn, and 1,500 pounds of seed cotton.

The court at the conclusion of the evidence gave the general affirmative charge for the plaintiff, and the jury returned a verdict in compliance therewith, assessing damages for the plaintiff at $139.70.

product of the land to which the mortgagor

had at the time a definite present interest, as distinguished from a mere possible or expectant future interest. Gilliland Merc. Co. v. Pond Bros., 189 Ala. 542, 66 South. 480; Littleton v. Abernathy, 195 Ala, 65, 70 South. 282; Windham v. Stephenson, 156 Ala. 341, 47 South. 280, 19 L. R. A. (N. S.) 910, 130 Am. St. Rep. 102.

[2] However, it appears that J. W. Coleman had rented the land for the previous year, remained in possession, and was "holdPlaintiff relied upon an instrument in ing over" after the expiration of his lease form a note and mortgage; the mortgage (Shotts v. Cooper, 199 Ala. 284, 74 South. 353), covering crops for certain years, including continued thereon, and made the crop under the year 1915. One note and mortgage was an agreement made about a month thereafter, executed by J. W. Coleman on February 19, and the court is of the opinion under these 1915, the other by his brother L. C. Coleman, circumstances he had such an interest as to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes