Bradley v. Johnson

• Decision Date: 18 May 1926
• Docket Number: 6 Div. 825
• Parties: BRADLEY et al. v. JOHNSON.
• Court: Alabama Court of Appeals

108 So. 651

21 Ala.App. 395

BRADLEY et al. v. JOHNSON.

6 Div. 825

Court of Appeals of Alabama

May 18, 1926

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action by H.L. Johnson against Lee C. Bradley and J.S. Pevear, as coreceivers of the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Huey &amp Welch, of Bessemer, for appellants.

Bumgardner & Wilson, of Bessemer, for appellee.

RICE J.

This appeal is from a judgment in favor of appellee for $50 damages on account of the negligent killing of a "pot-licker hound."

Appellants have made 36 assignments of error and by a blanket statement in brief have undertaken to render it necessary that each of them should be treated by this court as having been argued and insisted upon. But we will not.

If briefs would be prepared in strict accordance with the rules it would greatly simplify the labors of the appellate courts. But we seem to have fallen heir to a sort of loose or liberal practice in that regard, and will, as best we can ascertain them, proceed to treat the points argued in appellant's brief filed on this appeal.

The first error (alleged) committed by the trial court, which is urged upon us as a reason to reverse the judgment appealed from, is its action in overruling the demurrers to counts 1 and 2 of the complaint separately. In each instance, however, the defect in the count is said to consist in the use of the word "approximately," where the word "proximately" should have been used, or was evidently intended to be used, in stating that the negligence of appellants complained of proximately caused appellees' damage, etc.

The argument is ingenious, but cannot prevail. In the first place, we are tempted to say that the error (in the use of the word "approximately") was self-correcting. But under the decisions of our Supreme Court that is unnecessary. In the case of Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85, that court said:

"We may look to the evidence, the pleadings, and the charges [italics ours], when doubt arises as to the true issues upon which the case was tried, to ascertain the theory upon which the cause was litigated; and by these means the record in this case shows that the case was tried on the correct theory."

That quotation applies here.

And again we quote, as applicable here, what that court said in Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832, as follows:

"However, no prejudicial error could or did result to plaintiff in the rulings on the demurrers to those counts of the complaint, since the meritorious, true issues, tendered by the counts were clearly and correctly submitted to the jury by the court, and no error in the admission or rejection of evidence intervened to affect the bases for the jury's conclusions on the real issues of fact properly passed to the jury for decision."

And from Brooks v. Muncie & P. Traction Co., 176 Ind. 298, 95 N.E. 1006, a case decided by the Supreme Court of Indiana, we take this:

"The word 'approximately' is used in this instruction instead of 'proximately.' The words in meaning are so closely allied that the use of the former, in the connection in which it appears in this instruction, could not have misled the jury, especially in view of other instructions given."

The trial court, in the instant case, charged the jury, among other things, as follows:

"This is a suit brought by H.L. Johnson against Lee C. Bradley as receiver, etc., for the death of a dog. It alleges (italics ours) the plaintiff alleges *** the agents of the defendant *** were negligently (negligent) in the operation of that street car, and as a proximate result of that negligence they killed the dog of the plaintiff."

And...