Alabama Great Southern R. Co. v. Loveman Compress Co.

• Decision Date: 11 May 1916
• Docket Number: 2 Div. 614
• Citation: 72 So. 311,196 Ala. 683
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. LOVEMAN COMPRESS CO.
• Court: Alabama Supreme Court

72 So. 311

196 Ala. 683

ALABAMA GREAT SOUTHERN R. CO. v. LOVEMAN COMPRESS CO.

2 Div. 614

Supreme Court of Alabama

May 11, 1916

On Rehearing, June 30, 1916

Appeal from Circuit Court, Sumter County; Bernard Harwood, Judge.

Action by the Loveman Compress Company against the Alabama Great Southern Railroad Company, for the destruction of a compress and equipment. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 2 of the complaint is as follows:

Plaintiff claims of defendant the sum of $15,000 damages for that on, to wit, the 28th day of January, 1914, defendant its servant or agent, while acting within the line or scope of their employment, negligently set fire to and destroyed the following described property. [ Here follows a description of the building and machinery which are alleged to have been adjacent to and near defendant's right of way at or near or in the town of Epps, Ala., in Sumter county.] Plaintiff avers that on said date plaintiff was the owner of said property, and was damaged in the amount sued for.

Plea 8 was, in substance, that plaintiff had no interest in the subject-matter of the suit, in that plaintiff had insured the property which was destroyed by fire in an insurance company for $5,000, and that after the fire and destruction of said compress, damages for which this suit is brought, the insurance company paid to plaintiff the insured value of said compress, and plaintiff accepted from said insurance company said payment in satisfaction of its claim, and has assigned any right of action which it may have had with respect thereto to the insurance company. The indemnity contract referred to sufficiently appeared. The following charges were refused to the defendant:

(1) Affirmative charge.

(3) If the jury believe from the evidence that the damage complained of in the complaint was caused by sparks from defendant's engine, run and operated upon its said road the plaintiff is not entitled to recover if the jury should further believe from the evidence that defendant's engine was equipped with modern and improved spark arresters, such as are used on well-regulated railways.

(5) The evidence is uncontroverted that the engine which it is alleged caused the fire was in good condition at the time of the injury complained of.

(9) Under the evidence in this case, the engine of the plaintiff was properly handled and properly equipped, and plaintiff is not entitled to recover in this instance.

(24) Same as 3, with amplification as to inspection.

(8) The court charges the jury that the mere fact, if it be a fact, that the property of plaintiff was discovered to be on fire soon after the passage of one of defendant's engines raised no presumption that said fire had originated by sparks escaping from said engine.

(12) The court charges the jury that while the law is that when a fire is proven to have been caused by fire escaping from an engine of the railroad company, the presumption of negligence arises, it is not a rule of liability, but only casts upon the defendant the burden of proof to show that its engine was properly equipped and properly handled, and when the railroad company repels the inference of negligence by proof of the proper construction of its engine, and the use of proper appliances and careful management, the plaintiff cannot recover, unless the plaintiff should reasonably satisfy the evidence from the jury of other negligence or want of care on the part of the 312 company.

(4) If the jury believe from the evidence that defendant used a spark arrester of an approved pattern in genuine use which, upon inspection, by competent persons at or about the time of the fire mentioned, appeared to be in good condition, and that said engine was run and handled by a competent and skillful engineer in the ordinary manner of handing such engine, at the time and place when and where said injury occurred, and if you should further believe that said fire originated by the sparks escaping through such spark arrester, the defendant is not liable for the injury resulting from such fire, and your verdict should be for defendant.

A.G. & E.D. Smith and J.T. Stokely, all of Birmingham, for appellant.

Foster, Verner & Rice, of Tuscaloosa, for appellee.

ANDERSON C.J.

Defendant's plea 8 is such a plea in abatement as is required to be verified by section 5332 of the Code of 1907, and was demurred to because not verified, and the trial court did not err in sustaining the demurrer. It might be that it could have been stricken on this account, but it could also have been eradicated by a demurrer. Moore Bros. v. Cowan, 173 Ala. 536, 55 So. 903.

The only ground of objection to the evidence of the witness Barnes as to the value of the compress was that "he was not shown to be an expert in the valuation of property of this kind." A nonexpert can given an opinion as to value. Southern R.R. v. Morris, 143 Ala. 628, 42 So. 17; Lewis v. State, 165 Ala. 83, 51 So. 308; Vandegrift v. State, 151 Ala. 105, 43 So. 852.

There was no error in sustaining the plaintiff's objection to the questions to the witness Hester as to the amount of insurance on the compress, as the answer to same could not properly tend to establish the value of said compress.

The defendant set up as a special defense an indemnity against liability for the negligent destruction of the property arising out of a contract or lease between it and the plaintiff, whereby the defendant was to be held harmless for the things now complained of in consideration of the use of a part of its right of way by the plaintiff in connection with its compress business. The court did not hold that the said indemnity clause was void as being contrary to public policy, but affirmatively eliminated this defense because the same was ultra vires as to the plaintiff corporation. Hence the case of A.G.S.R.R. Co. v. Demoville, 167 Ala. 292, 52 So. 406, has no application to the powers of this plaintiff, under its charter, as it deals only with the validity vel non of such contracts with reference to public policy, and, as above stated, the contract in question was not condemned as being violative of public policy, but because ultra vires the plaintiff corporation. The plaintiff's charter was introduced in evidence, and while it gives general powers as to the things therein enumerated, including the right to buy, sell, and hold real estate, and which would include the right to lease the same, there is nothing in the charter expressly or by necessary implication that would authorize it to indemnify the defendant against its negligence and willful and wanton misconduct as provided in the clause of the lease relied upon by the defendant. We therefore think that the trial court properly ruled, in the oral charge and by giving and refusing certain special charges, that the clause in question was not binding...