Burgreen Contracting Co., Inc. v. Goodman
| Decision Date | 30 April 1975 |
| Citation | 314 So.2d 284,55 Ala.App. 209 |
| Parties | BURGREEN CONTRACTING COMPANY, INC. v. Jack GOODMAN. Civ. 231. . On Rehearing |
| Court | Alabama Court of Civil Appeals |
Patton, Latham & Legge, Athens, for appellant.
Malone, Steele & Alexander, Athens, for appellee.
ON REHEARING
On original submission the appeal in this case was dismissed, and the author of that opinion was Supernumerary Judge T. Werth Thagard. After rehearing was applied for but before a decision could be made, Judge Thagard died. The case was reassigned to the author of the opinion on rehearing.
The original opinion in the case is withdrawn and the following opinion filed.
The appeal is from a judgment for plaintiff in the amount of $3,500 for injury to two brood mares.
Plaintiff filed a one-count complaint on August 26, 1971. A motion to dismiss the complaint was overruled. In January 1973 plaintiff amended its complaint by adding Counts Two and Three. Defendant, on March 15, 1973, filed a motion to strike a portion of Count Two and all of Count Three. This motion was overruled.
Prior to the beginning of the trial on March 19, 1973, by agreement of the parties, Counts One and Three were stricken, and the case went to the jury on Count Two. There was a verdict and judgment rendered in favor of plaintiff for $3,500. The appeal is from that judgment.
After the appeal was filed in this court, but before submission, appellee filed a motion to strike the transcript of the record and to affirm the trial court's judgment.
Appellee assigns two grounds in support of his motion to strike, the first of which charges that the transcript of the record was not filed in this court within sixty (60) days after the transcript of the evidence was established in the trial court as required by Supreme Court Rule 37.
Rule 37 of the Supreme Court Rules provides, in pertinent part, as follows:
Should there be no objections made within ten days after the filing of the transcript of evidence in the circuit clerk's office, the transcript is deemed Established on the day that it was filed. Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140.
The transcript of the record filed in this court shows on transcript page 23 that the transcript of evidence was filed in the circuit clerk's office on July 7, 1974. The record does not contain any objections made to the transcript of evidence filed in the circuit clerk's office.
The transcript of the record was filed in this court on September 3, 1974, which is within sixty (60) days of the establishment of the transcript of evidence in the trial court. No violation of Supreme Court Rule 37 here.
By its second ground, appellant says that the extensions in time which were granted by the trial judge for the filing of the transcript of the evidence were unreasonable and were to the prejudice of appellee, and alleges that some of the delay was the fault of appellant. There were seven motions of appellant for additional time for filing the transcript of the evidence and seven orders of the court granting the extensions. The first such order was dated September 12, 1973 and the last was dated July 8, 1974. Although the orders do not so recite, we have no doubt that the trial court had good reason for granting these extensions. At any rate these matters were in his sound discretion. We find no evidence that there was an abuse thereof. There is no merit in the second ground of the motion to strike.
The motion to strike the transcript of the record filed in this court and to affirm the judgment of the trial court is denied.
The facts reveal that plaintiff, Jack Goodman, is a practicing veterinarian in Limestone County, Alabama. Goodman, in association with another person, had leased some land from Kaiserling and Shering, and the leased land was used to pasture horses. These horses were mostly brood mares. On August 27, 1970 Goodman learned that his horses were out of the pasture. He went to the pasture and found that a portion of a fence had been torn down and the horses had escaped from the pasture and were found in a nearby field where corn and soybeans were growing. The horses had eaten some of the green corn and green soybeans. Two of the horses were pregnant at this time and as a result of the ingestion of this green vegetation the horses were caused to founder and to abort.
When Goodman found his fence torn down, he also discovered that a highway was being built through a portion of the land that he had leased. He contacted the appellant-defendnat who was doing the clearing of the right-of-way and informed its representative, Bobby Burgreen, that the fence was down and his horses had gotten out of their pasture.
A temporary fence was erected the next day by appellant and it was still standing at the time of trial.
There was testimony by the senior project engineer of the State Highway Department that the land Goodman had under lease abutted the right-of-way of a portion of Interstate Highway 65 that was under construction. The prime contractor on the job was Hot Mix, Inc. and the subcontractor was appellant.
The engineer stated that the plans and specifications for the clearing, etc. were incorporated in appellant's contract. There was a provision in the plans and specifications as follows:
'Where the removal of existing cross-fences is necessary for construction and where permanent fences cannot be erected until a later date and temporary fences are necessary to control livestock, it shall be furnished by the contractor and the cost shall be absorbed in other items of work.'
Appellant has argued several assignments of error in its brief and the first ones we will consider claim that Count Two of the complaint--which was the only count in the complaint when it was given to the jury--fails to state a cause of action. In support of such contention, appellant says that Count Two is devoid of any facts showing a breach of contract by appellant. Furthermore, should appellee have a cause of action, it would sound in tort rather than contract.
The supreme court in Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71, said:
Count Two alleged that the prime contract between the State of Alabama and Hot Mix, Inc. provided that:
'Where the removal of existing cross fences is necessary for construction and where permanent fences cannot be erected until later and a temporary fence is necessary to control livestock, it shall be furnished by the contractor and the cost absorbed in other items of work.'
It further alleged that appellant in its contract with Hot Mix, Inc. to do the grading and drainage on the project in question also agreed to abide by the provision above set out and that appellant failed to erect temporary fences along the right-of-way so as to prevent appellee's horses from getting out of their enclosure and eating vegetation that was harmful to them, thereby causing appellee to be damaged.
The gist of the complaint is that appellant failed to erect temporary fences along the right-of-way where existing fences had been removed as required by the contract and, as a result of this omission, appellee's horses were allowed to escape their enclosure and injure themselves to appellee's detriment.
In support of his complaint, appellee says that appellant promised Hot Mix, Inc. that it would, where necessary to protect livestock, erect temporary fences along the right-of-way to keep the livestock in their present enclosure and prevent them from getting out. Appellee says that he had a fenced pasture where horses were kept and appellant tore down a portion of the fencing for the purpose of carrying out its contract to build a segment of Interstate Highway 65 in Limestone County. He says, in effect, that this provision in appellant's contract was for his benefit.
The question to be answered next as pointed out in Anderson, supra, is whether appellant was a direct beneficiary or an incidental beneficiary. Should appellant be a direct beneficiary, he would have a cause of action sounding in contract; if he were in incidental beneficiary of this contract, he would not have a contract action.
In Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459, the appellant had entered into a contract with a labor...
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...to incidental, benefit. See, e. g., Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965); accord, Burgreen Contracting Co. v. Goodman, 55 Ala.App. 209, 314 So.2d 284, petition for cert. stricken, 294 Ala. 199, 314 So.2d 296 (1975). The duties to Manhattan that Providence breached ......
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