THE SOUTHERN REPORTER VOLUME 98 aware of the peril, he failed to conserve the SOUTHERN RY. CÒ. v. LIME COLA BOT-truck, as due care and diligence requires, and TLING CO. et al. (6 Div. 975.) (Supreme Court of Alabama. Nov. 15, 1923.) 1. Negligence 119(6)-Count for simple negligence allows proof of and recovery for subsequent negligence. A count charging simple negligence allows proof of and recovery for negligence subsequent to discovery of plaintiff's peril, if the proximate cause of the injury. 2. Appeal and error 301, 719(1)—Error not mentioned in motion for new trial and not assigned in transcript as required by court rule not considered. Overruling objection to and motion to exclude argument, urged as error in appellant's brief but not mentioned in the motion for new trial, not being assigned in writing as error in the transcript, as required by Supreme Court rule (Code 1907, p. 1506), will not be considered on appeal. 3. Trial 253(4)-Instruction as to last clear chance doctrine held bad for omission of hypothesis. Requested charge that one remaining on a railroad track, after becoming conscious of the immediate approach of a train, is guilty of negligence subsequent to or concurrent with the negligence of the trainmen after discovering his peril, which will defeat recovery, is bad in failing to hypothesize that he could have gotten out of the way, but failed to do so after becoming conscious of approach of the cars. General 4. Negligence 136 (2) charge properly refused on evidence authorizing inference of negligence. The general affirmative charge, with hypothesis, is properly refused defendant in a negligence case, there being evidence from which the jury could reasonably infer that the injury was proximately caused by the subsequent negligence of defendant's employees while acting in the line and scope of their duty. 5. Railroads 351 (22) Instructions held Improper as failing to define negligence. Requested charges as to jury's duty, unless reasonably satisfied of truck driver's freedom from contributory negligence after becoming conscious of the danger, and if reasonably satisfied that, after he and the trainmen became that his negligence was subsequent to or concurrent with that of the trainmen, and that the injury proximately resulted therefrom, held properly refused, because failing to define negligence, improperly leaving it. for the jury to define. Defendant's requested instructions lettered C, D, and E are as follows: "C. Unless you are reasonably satisfied from the evidence that the truck driver was free from negligence which proximately contributed to the injury after becoming conscious of the danger, you must find for the defendant. "D. One remaining on a railroad track after becoming conscious of the immediate approach of a train, instead of leaving the track, is guilty of negligence subsequent to or concurrent with the negligence of the trainmen after discovery of such person's peril, which will defeat a recovery. "E. If you are reasonably satisfied from the evidence that after the truck driver and the trainmen became aware of the imperiled situation of plaintiff's property, the truck driver failed to conserve the safety of the property as due care and diligence requires, and that such negligence on his part was subsequent to or concurrent with that of the trainmen and that the injury proximately resulted therefrom the plaintiff cannot recover." Bankhead & Bankhead, of Jasper. for appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 98 SO.-1 Coleman D. Shepherd, of Jasper, for appel- | Cent. of Ga. Ry. Co. v. Foshee, 125 Ala. 201, lees. MILLER, J. This is a suit by the Lime Cola Bottling Company, a partnership composed of S. D. Kilgore, J. F. Bargainer and A. R. Disney, against the Southern Railway Company, a corporation, for damages for injuries to a truck, together with the bottles and cases on it, while crossing the railroad track of defendant at a public street or road crossing, caused by cars of defendant being negligently run against the truck of plaintiff by servants of defendant while acting in the line and scope of their employment. The jury returned a verdict in favor of the plaintiff; the court rendered judgment thereon against the defendant; and this appeal is prosecuted by the defendant from this judg ment. There were three counts in the complaint. Counts 2 and 3 charged wanton negligence, and count 1 simple negligence. The wanton counts were eliminated by the oral charge of the court and written charges given the jury. Pleas 2 and 3 set up contributory negligence of the plaintiff's driver of the truck to this simple negligence count, and plaintiff replied specially to these pleas, setting up subsequent negligence of the defendant as an answer to them. The defendant by plea 5 to the simple negligence count set up negligence on the part of the driver of plaintiff's truck concurrent with or subsequent to that of the subsequent negligence of the trainmen of the defendant. headnote 6, 27 South. 1006; L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 South. 812; A. G. S. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84. [2] The appellant objected to and moved to exclude from the jury certain parts of the argument of the attorney for plaintiff. The court overruled the objection and the motion. This ruling of the court is urged as error in brief of appellant, but it is not assigned in writing as one of the errors in the transcript, and it is not mentioned in the motion for new trial. This alleged error will not be considered by this court, as this is a civil case, and it is not assigned as the rule requires. Supreme Court rule 1 (page 1506, Code 1907); Erwin v. Reese, 54 Ala. 589; Gay v. Hester, 164 Ala. 651, headnote 1, 51 South. 329. [3] Charge lettered D requested in writing by defendant, was properly refused by the court. It fails to hypothesize if the driver of the truck could have gotten out of the way but failed to do so after becoming conscious of the approach of the cars. He may not have had reasonable time or opportunity to get the truck off of the track after becoming conscious of the immediate approach of the cars. This charge follows headnote 3 in A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84, but the headnote is misleading, and is not sustained by the language of the opinion. A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84. [4] The general affirmative charge, with hypothesis, requested by the defendant was properly refused by the court. There was evidence from which the jury could reasonably infer the injury to the truck and its contents was proximately caused by the subsequent negligence of the servants or agents of the defendant while acting in the line and scope of their employment. A discussion of this evidence and its reasonable tendencies which cause us to reach this conclusion, is not required, and it will serve no useful purpose to be stated in this opinion. Cobb v. Malone,. 92 Ala. 630, 9 South. 738; The defendant has three tracks which cross a much used street in the town of Cordova. Two box cars were released from an engine of defendant and moved down grade, toward this crossing, to be placed at a cotton mill. The conductor and brakeman were on top of the cars. The plaintiff's truck, driven by its agent, approached the crossing; he did not stop, look, and listen before attempting to cross the tracks, and while the truck was on or crossing one of these tracks it was struck by the cars and injured. So the real ques-McMillan v. Aiken, 205 Ala. 35, headnotes tion under the pleadings submitted by the 9-11, 88 South, 135. court to the jury was whether the injury to the truck and its contents was proximately caused by the subsequent negligence of the trainmen or by the negligence of plaintiff's driver of the truck, concurrent with or subsequent to the subsequent negligence of the trainmen. The evidence was in conflict on these issues. There was evidence or reasonable inferences that could be drawn from proven facts which tended to establish each side of the controversy as presented by the issues in the pleading. [1] Count 1 charges simple negligence, but under it proof of subsequent negligence may be introduced and recovery for it secured, [5] Written charges C and E were separately requested by the defendant, and the court did not err in refusing them. These charges fail to define negligence, but improperly leave it for the jury to define. It is true charge E follows substantially the language in the opinion in the case of L. & N. R. R. Co. v. Young, 153 Ala. 235, 45 South. 238, 16 L. R. A. (N. S.) 301, yet it does not define negligence and the court was not undertaking to state what language would be apt or proper in a charge to the jury. [6] The court did not err in overruling the motion of defendant for a new trial based on the ground that the verdict was "contrary to (98 So.) weight of the evidence." There is ample evi-¡ work and material, the account claimed and dence to sustain the verdict. It does not ap-filed being for the sum of $130. The respondpear to be wrong or unjust. Birmingham ent first filed an answer denying generally Bank v. Bradley, 116 Ala. 142, 23 South. 53; the allegations of the bill and specifically deStull v. Daniel Mach. Co., 207 Ala. 544, head-nied owing said "$130." He subsequently filed note 15, 93 South, 583. The judgment is affirmed. a plea since the last continuance setting up an accord and satisfaction. This plea does not set up a bona fide dispute as to the claim and the acceptance of the amount conceded ANDERSON, C. J., and SAYRE and by the respondent to be due so as to square GARDNER, JJ., concur. up with the rule declared in the case of Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 South. 662. It sets up an agreement between counsel as to the amount to be paid the com ABEL BROS. PLUMBING CO. v. KUMPE. plainants and the payment to them, or their (8 Div. 566.) In action to collect an account and to enforce a lien for work and material in which the defendant set up an accord and satisfaction, evidence held insufficient to prove the payment of the amount agreed on. Appeal from Circuit Court, Lawrence County; Robert C. Brickell, Judge. Bill of the Abel Brothers Plumbing Company against J. E. Kumpe. From a decree for respondent, complainant appeals. versed and remanded. Re counsel, of the sum so agreed upon. The trial court, in effect, found that the plea I was sufficient and was proven, thus finding for the respondent without going into the merits of the case. While there seems to have been an honest difference between Mr. Godbey and Judge Lowe as to the terms of the settlement, both of whom testified in the case, we are constrained to hold that the amount agreed upon was not paid as averred in the plea. Counsel for complainants testified that the amount to be paid was $10 less than the amount claimed, and which should leave $120 to be paid. Judge Lowe's recollection is that there was a dispute as to the amount claimed and that the amount agreed upon was to split the difference between the sum claimed and the amount conceded by reTo the bill defendant interposed this plea: spondent as owing complainants. It is true "And the said respondent for further answer counsel for respondent was told by Mr. Godto complainant's bill filed in this cause pleads bey that $97.50 was claimed before the reand says that the complainant should not re- spondent sent the check for $87.25, but the cover against him in this proceeding because evidence conclusively shows that a mistake since the last continuance herein, on, to wit, the was made by looking at the first page of 4th day of August, 1919, the complainant and the respondents, acting by and through their the account and not the last one, as the respective counsel, came to an agreement as to final balance there disclosed was $130. In the amount due by the respondent to the com- either event, however, the check as sent in, plainants, and the respondent then and there though varying a few cents, corroborates paid to the solicitor of the said. complainant complainant's theory as to the terms of the the amount agreed on as due to said complain- settlement being $10 less than the sums statants, to wit, the sum of $87.25, which said sumed to be due and was not one-half of the difwas received by said solicitor for complainant ference between the amount claimed and and accepted by him in full satisfaction and discharge of the said cause of action here de- what was conceded to be due, whether we clared on, and respondent avers that he has take $130 or $97.55 as a basis for calculafully paid off and discharged any and all in- tion. If we take the former, the check should debtedness due by him to the said complain- have been for one-half the difference between ants and has fully paid off and discharged all $130 and $82.45, the amount conceded as liens, claims, or incumbrances of every char- due by respondent, and which would be $106.acter or description which the complainants at 22. If we take the latter $97.55, the check the time of the filing of the bill in this cause should have been for $89.90 and not $87.25. or at this time had or has against this respondent." E. W. Godbey, of Decatur, for appellant. ANDERSON, C. J. This bill was filed to collect an account and enforce a lien for The trial court erred in finding the issue for the respondent under this plea, and the decree is reversed and the cause is remanded. Reversed and remanded. SOMERVILLE, THOMAS, and BOULDIN, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes BROWNE v. PECK & PIRTLE. (8 Div. 587.) (Supreme Court of Alabama. Nov. 15, 1923.) Pleading 248(17)-Amendment held not to state new cause of action. In a suit to enforce a mechanic's lien, the original affidavit alleging a certain sum due plaintiffs for material and labor furnished by them in repair of defendant's automobile, an amendment to show that part of the amount claimed was for work done by a partnership, who had assigned their claim to plaintiffs who had then completed the job, did not state a new cause of action, under Code 1907, § 5367. The full amount of question of variance. $63.90 was due the plaintiff, but of this sum $24 was for labor performed by Finley & Nelson, whose business was purchased and taken over by the plaintiffs; this account being duly transferred in writing. The amended affidavit related therefore to the same subject-matter between the same parties, and therefore related back to the com mencement of the suit. We think the amendment was properly allowed under the following, among other, authorities: Witherington v. Gainer, 149 Ala. 655, 43 South. 117; Webb v. McPherson, 142 Ala. 540, 38 South. 1009; McCain v. Street, 136 Ala. 625, 33 South. 872; Appeal from Morgan County Court; W. L. Brown v. Loeb, 177 Ala. 106, 58 South. 330; Lowe, Judge. Action by A. M. Peck and E. P. Pirtle, doing business as Peck & Pirtle, against J. F. Browne and Shed Pruitt. From a judgment for plaintiffs, defendant Browne appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed. Tennis Tidwell, of Albany, for appellant. E. W. Godbey, of Decatur, for appellees. GARDNER, J. Suit by appellees against appellant and another for the enforcement of a mechanic's lien on a certain automobile described in the pleadings. Section 4785 et seq., Code 1907. The original bill of complaint and affidavits upon which the attachment issued alleged that the sum of $63.90 was due for material furnished and labor performed by the plaintiffs in the manufacture and repair of said automobile. Subsequently the trial court, over the objection of the defendants, permitted the plaintiffs to amend the affidavit so as to show that $24 of the amount embraced in the original claim of $63.90 was for work done by a partnership known as Finley & Nelson, who were mechanics, and who as such mechanics contributed their labor and material in the repair of the car for the defendants; that said Finley & Nelson undertook the job of repairing the automobile, and before completing the same turned it over to plaintiffs for completion, and as signed in writing their account and claim for such work to the plaintiffs, who completed the job. The original complaint was amended to like effect. It is insisted by counsel for appellant that the amended affidavit disclosed a new cause of action, particularly so far as concerned the $24 due for labor performed by Finley & Nelson, and that the amended affidavit was improperly allowed. Johnson v. Staenglen, 85 Fed. 603, 29 C. C. A. 369; sections 5366, 5367, Code 1907. The case of Sorsby v. Woodlawn Lbr. Co., 202 Ala. 566, 81 South. 68, cited by counsel for appellant, is not analogous to the instant case, and in no manner militates against the conclusion here reached. We have not overlooked the insistence of counsel for appellees that the question here sought to be reviewed was not properly presented in the court below; but we have pretermitted a consideration of all preliminary questions, preferring to rest the decision upon the merits of the cause. Finding no reversible error, the judgment of the court below will be affirmed. Affirmed. 2. Specific performance 51 Not denied against mortgagor agreeing to convey equity of redemption. Where vendor accepted $500 from purchaser, to be used in redeeming land, and agreed to convey it to purchaser after redemption, specific performance will not be denied where there was nothing in the contract itself to condemn it nor in the evidence to show vendor had not received a fair price for his statutory right of redemption. Permitting 3. Appeal and error 1051(3) parol proof of matters admitted by contract not error. This is the important question presented upon this appeal, upon which all others seem to rest. We are of the opinion that the amendment did not state a new cause of action, but was merely descriptive of the In suit for specific performance of a land original suit, made in order to avoid any sale contract, there was no error in allowing (98 So.) parol proof as to a mortgage and its foreclo- containing three acres. Mineral rights exsure, which were conclusively admitted by the contract itself. 4. Evidence 178(4), 185(1)-Parol proof of quitclaim deed directly involved in suit not admissible unless demand for production made, or it appears to have been lost or destroyed. In a suit for specific performance of a land sale contract, where the existence of a quitclaim deed procured by way of redemption was directly involved, parol evidence could not properly be received in proof thereof unless complainant made demand for its production, or unless it appeared that it had been lost or destroyed. 5. Appeal and error -743(2)-Assignment of numbered rulings not considered where no numbers in record. cepted. "Witness my hand this 26th day of July, 1921. "Willis Dabbs, "Party of the First Part. "Witness: Fred Ross." The bill alleges that complainant has paid the $500 to respondent, and has complied with every term of the contract, that the quitclaim deed by the heirs of William A. Dabbs has been procured, and that respondent has been requested to execute the warranty deed mentioned and has failed or refused to do so. Respondent demurred to the bill on the grounds that it is without equity, that it shows a complete remedy at law, and that the contract exhibited was without any val An assignment of error in rulings on evi-uable or legal consideration. The demurrer dence "Nos. 1 to 46" cannot be sustained where the record shows no numbering of the rulings. 6. Appeal and error 738—Joint assignment must be good in toto. A joint assignment of several rulings on evidence must be held bad unless good in toto. Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. Bill by Arthur Letson against Willis Dabbs. From a decrce for complainant, respondent appeals. Affirmed. The bill of complaint is filed to compel specific performance of the following contract for the conveyance of land: "Know all men by these presents: That this contract entered into by and between Willis Dabbs, party of the first part, and Arthur Letson, party of the second part, witnesseth: That the said Willis Dabbs was the owner of certain hereinafter described real estate, and that he executed a mortgage on said land to William A. Dabbs, and that said mortgage was never paid, and the land was sold at a mortgage foreclosure sale, and that said land was bought in at said sale by the heirs of the said William A. Dabbs, and that he is now desirous of redeeming said land, therefore, in consideration of the sum of five hundred dollars, in hand paid me by Arthur Letson, the receipt whereof is hereby acknowledged, I will execute to the said Arthur Letson a warranty deed conveying all my right, title, interest and ownership to said land to the said Arthur Letson, as soon as I have procured a quitclaim deed to same from the heirs of the said William A. Dabbs, now deceased. The said five hundred dollars received by me to be used in redeeming and paying said heirs for the land sold under the mortgage. The warranty deed to be executed to Arthur Letson by August 20, 1921, said land being described as follows, viz.: A being overruled, respondent answered, setting up that the contract he made with complainant was that complainant should pay $500 for respondent's interest in the land, and also $500' for obtaining quitclaim from said heirs. The answer denies that the money has been paid as agreed, but admits receiving $61 from complainant, which he offers to return. The evidence supported the allegations of the bill, and a decree was rendered granting relief. The assignments of error are discussed in the opinion. Bumgardner & Wilson, of Bessemer, for appellant. lee. Goodywn & Ross, of Bessemer, for appel SOMERVILLE, J. The bill of complaint alleges every element necessary to entitle complainant to the relief prayed for. are [1] Respondent's chief contentions that the contract sought to be enforced does not show that any valuable consideration was paid by complainant for respondent's undertaking, and that the contract was unfair and inequitable in that it would amount merely to a gift by respondent to complainant of his statutory right of redemption from the foreclosure sale. Very clearly the contract in question shows a valuable consideration for respondent's undertaking, even though it resulted in no personal advantage to himself. The promisee paid $500 to the promisor, and was out of pocket that much, whatever was to be done with the money. This was sufficient to support the contract. Rutledge v. Townsend, 38 Ala. 706; Hixon v. Hetherington, 57 Ala. 165, 166; Henry v. Murphy, 54 Ala. 246, 252. fraction of land lying in the N. E. 4 of the N. E. 4 of section 25, township 18, range 5[2] As to the equity of its specific enforcewest; this land to commence at the S. E. cor- ment, there is nothing in the terms of the ner of said forty and run north 138 yards, contract itself to condemn it, nor is there thence west 108 yards, thence south 138 yards, anything in the evidence to justify a denial thence east 108 yards to point of beginning, of such relief. The obligation of respondFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |