Alabama, T. & N. Ry. Co. v. Aliceville Lumber Co.

• Decision Date: 21 December 1916
• Docket Number: 6 Div. 177
• Citation: 74 So. 441,199 Ala. 391
• Court: Alabama Supreme Court
• Parties: ALABAMA, T. & N. RY. CO. v. ALICEVILLE LUMBER CO. et al.

74 So. 441

199 Ala. 391

ALABAMA, T. & N. RY. CO. v. ALICEVILLE LUMBER CO. et al.

6 Div. 177

Supreme Court of Alabama

December 21, 1916

Rehearing Denied Feb. 1, 1917

Appeal from Chancery Court, Pickens County; Thomas H. Smith Chancellor.

Bill by the Alabama, Tennessee & Northern Railway Company against the Aliceville Lumber Company and others, to enjoin actions at law, with cross-bill by respondent. From a final decree for respondents complainant appeals. Affirmed.

The final decree directed to be set out is as follows:

There are two systems under which an issue is had out of chancery. One given by statute, as in cases of contested wills, which is a matter of right to have such in issue (section 6207, Code 1907); the other where the court refers a disputed question of fact after having read the evidence and wishing the aid of the verdict of the jury to satisfy the mind and conscience of the chancellor (section 3201, Code 1907; Ex parte Colvert, 188 Ala. 650, 65 So. 964). The two seem to be distinguishable in several particulars. In the first, it is a matter of right, and is ordered before evidence has been taken in the chancery cause, and the finding is binding, but may be set aside for error in the trial. Adams v. Munter Bros., 74 Ala. 342; Ex parte Colvert, supra. In the second, where the reference is made by the chancellor after having read the evidence already taken to aid and assist him in arriving at a conclusion on a doubtful question of fact. In this class of cases the verdict is merely advisory. Section 3201, Code 1907, and citations; Marshall v. Croom, 60 Ala. 121; Adams v. Munter Bros., supra; Mathews v. Forniss, 91 Ala. 157, 8 So 661. The question referred to the jury in this case was whether or not a fire which destroyed a certain mill was caused by the locomotive of complainant, through the negligence of complainant, etc., and the value of the property which was destroyed, all of which was more particularly shown by the decree ordering the issue to be tried by a jury. This court does not set as a court of review, as I understand the authorities, charged with the duty to refer the case back to the jury should a single erroneous question and answer have been allowed on the trial but the question presented is whether such an unfair trial was had that the court should disregard the finding entirely. For the court to do this the entire evidence should have been certified to it with such objections pointed out as show that the finding of the jury was so opposed to the evidence as to be worthless as a guide to the chancellor. Authorities supra. This has not been done. They seem to rely on supporting their motion on objections to evidence without showing what was the ruling of the lower court. This court must presume in favor of the lower court and not against it. It must be shown, not that certain irrelevant and immaterial or illegal evidence is offered or even admitted, but that the finding of the jury from the legal evidence before it was erroneous, unfair, and not such as could be arrived at by a fair-minded juryman. There is nothing in this record to show this, or to show that the jury was influenced by the admission of illegal or irrelevant evidence. An examination of the testimony taken by depositions in this cause before the issue was referred to the jury leads the chancellor to the same conclusion as that arrived at by the jury from the evidence before it. The chancellor is then justified in arriving at the conclusion that the finding of the jury was fairly obtained, and should not disregard it. This, I take it, is what is intended by the authorities when they use the expression, "instructs the conscience of the chancellor and enables him to arrive at a more satisfactory conclusion." Upon consideration of the motion and evidence to set aside the finding of the jury, and on the pleadings and proof as noted, I am satisfied that the finding of the jury should be accepted by the chancellor, and a motion for a re-reference to the jury should be denied. I am also of opinion, upon consideration of this finding of the jury, and of all the evidence submitted on the hearing that cross-complainants are entitled to relief. It is therefore ordered, adjudged, and decreed by the court that the motion of complainant to set aside the verdict of the jury be and is hereby denied; that the property at the time of its destruction belonged to A.S. Murphy and Jos. B. Cunningham; that the fire destroying the lumber mill, machinery, products, etc., was caused by the negligence of defendant, complainant in this case, the Alabama, Tennessee & Northern Railway Company, a corporation.

Then follows the valuation as set out in the opinion, and an order forever enjoining defendants, the Aliceville Lumber & Construction Company, a corporation, and the Aliceville Lumber Company, a partnership, from instituting or carrying on any suit against complainant for the recovery of any damages by reason of the destruction or damage of the property described in the pleadings in this case, which was caused by a fire which occurred on October 10, 1909.

Oliver, Verner & Rice and Harwood, McKinley, McQueen & Aldridge, all of Tuscaloosa, and William H. Armbrecht and Gregory L. Smith & Son, all of Mobile, for appellant.

Patton & Patton, of Livingston, and H.A. & D.K. Jones, of Tuscaloosa, for appellees.

THOMAS J.

In the latter part of the night of October 9, or early in the morning of October 10, 1909, the property involved in this suit was destroyed by fire. It consisted of a sawmill, plant, machinery, lumber, etc., situated near the railroad and depot of the Alabama, Tennessee & Northern Railway Company, in the town of Aliceville, Pickens county, Ala. At this time this property was in the possession of Joseph B. Cunningham and Andrew S. Murphy, partners doing business under the name of Aliceville Lumber Company, who claimed the same, and claimed to have been operating the plant on their partnership account. This milling business was originally established by the Aliceville Lumber & Construction Company, a corporation, about the 1st day of January, 1906. Soon after its incorporation said Cunningham and Murphy purchased the interests of most of the other persons interested in said corporation, and from that time invested additional amounts in said business, operating it to the time of its destruction under the name of Aliceville Lumber Company, without the participation of other stockholders. Though there had been no meeting of the directors nor of the stockholders since the corporation was organized, it had never been dissolved as provided by law. The individuals, said Cunningham and Murphy, owned the land on which the mill was situated. The contract under which the corporation originally entered thereon provided that the lumber company should have the use of said land as long as it desired to use the same as a mill site, without the payment of rents, and without other consideration than, that upon its ceasing to use the land the improvements thereon should remain as the property of said individual owners.

On the 13th day of April, 1910, there were instituted in the circuit court of said county two suits against the Alabama, Tennessee & Northern Railway Company, for the recovery of damages for the destruction of said property by fire. Both suits were in all respects alike, except that in the one the parties plaintiff were Joseph B. Cunningham and Andrew S. Murphy, partners, and in the other the sole party plaintiff was Aliceville Lumber & Construction Company, a corporation. In each case the defendant propounded to the adverse party interrogatories under the statute; and answers to said interrogatories, on behalf of the plaintiffs, were made by Joseph B. Cunningham, and were to the effect that the property destroyed by fire was claimed in one suit as that of Cunningham and Murphy as individuals, and in the other suit, as that of Aliceville Lumber Company, a corporation.

On the 5th day of May, 1911, the defendant, Alabama, Tennessee & Northern Railway Company, filed its original bill in the chancery court of said county, invoking the jurisdiction of that court to prevent a multiplicity of suits and to protect complainant against vexatious and oppressive litigation at the hands of the respective plaintiffs in said suits. At the time of the filing of this bill, the complainant company obtained writs of temporary injunction, restraining the respective respondents, Cunningham and Murphy, doing business under the firm name of Aliceville Lumber Company, and the Aliceville Lumber & Construction Company, a corporation, from prosecuting said suits at law, pending the determination of the causes in chancery.

On the 3d day of June respondents demurred to this original bill and on the 14th day of July, 1911, moved a dissolution of the injunction on the ground that there was no equity in the bill. After the demurrers were overruled and the motion to dissolve was denied, the said respondents, on the 27th day of December, 1911, filed in said cases separate answers, and demanded a trial by jury of the issues of fact: (1) Whether the fire which consumed the properties in question was caused by, or originated through, the negligence of the complainant, its servants or agents; and (2) whether the complainant is liable for the destruction of said property by fire. Thereafter complainant and respondents took testimony by depositions. This testimony is now set out, occupying about 200 pages of the record. At the Spring term of the chancery court (March 27, 1913) said testimony was duly published by order of the court. The case was submitted on pleadings and proof and on respondents' motion and demand that the questions or issues above indicated be tried by jury, in...