Cartlidge v. Slone

• Decision Date: 21 November 1899
• Citation: 26 So. 918,124 Ala. 596
• Parties: CARTLIDGE v. SLONE.
• Court: Alabama Supreme Court

26 So. 918

124 Ala. 596

CARTLIDGE v. SLONE.

Supreme Court of Alabama

November 21, 1899

Appeal from circuit court, Cherokee county; S. H. Sprott, Judge.

Action by J. B. Slone against N.M. Cartlidge. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, J. B. Slone, against the appellant, N.M. Cartlidge. The gravamen of the action was that the plaintiff hired or loaned to the defendant a fine mare to do light work, and that, in violation of his agreement to so use said mare, he put her to heavy work, and while she was being so used she was injured, from the effects of which injury she died. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the court, at the request of the defendant gave to the jury the following written charges: "(1) The court charges the jury: If the jury believe from the evidence that Cartlidge got the mare to do a particular kind of work and put her to a different kind of work, and she was injured while doing such work, this was a conversion, and would make the defendant liable. (2) The court charges the jury: If the jury believe from the evidence that Cartlidge only plowed Slone's patch for his benefit, to get the mare sooner to use at his own work, this of itself was not sufficient to constitute a hiring. (3) The court charges the jury: If the defendant borrowed or hired the mare to do light work, and put her to heavy work, and while she was doing such heavy work she received an injury from which she died, then the defendant is liable, although the injury to the mare occurred without any fault on the part of defendant. (4) The court charges the jury that plaintiff makes out a prima facie case by proving to a reasonable certainty that the mare was not injured when Cartlidge got her, and that she was injured when he returned her. (5) the court charges the jury: if defendant used the mare at different work from that agreed upon, if any was agreed upon, and she received an injury while being so used, from which she died, defendant is liable, whether borrowed or hired." The defendant separately excepted to the giving of each o f these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) The court charges the jury that the relation of the plaintiff and the defendant at the time this horse was injured was that of hiring. (2) The court charges the jury that if they believe from the evidence the mare died from improper treatment by Slone, or by his doctoring, after she was injured, then the jury must find for the defendant. (3) The court charges the jury that if they believe from the evidence that the horse died from erysipelas or blood poison, and not from the injury received, the defendant is not responsible for the mare. (4) The court charges the jury that the plaintiff is not entitled to recover on the last count in his complaint." There were verdict and judgment for the plaintiff, assessing his damages at the sum of $100. From this judgment the defendant prosecuted an appeal, and gave a supersedeas bond, with two sureties. This bond bore date October 2, 1897. On October 22 1897, the defendant entered the following indorsement upon the supersedeas bond: "To the Clerk of the Circuit Court of Cherokee County, Alabama: You are hereby notified that I this day dismiss my appeal to the supreme court of the state of Alabama in the cause of J. B. Slone against N.M Cartlidge, and direct you not to make out any transcript from the said circuit court of said county to said supreme court." In this court motion is made by the appellee to dismiss the appeal, and to strike the cause from the docket, upon the ground that after taking the appeal the defendant himself, by indorsement upon the supersedeas bond, ordered the clerk to dismiss the appeal and not to send up a record. In reply to this motion the appellant filed and affidavit. The facts pertaining to this motion are sufficiently stated in the first paragraph of the opinion.

H. W. Carden, for appellant.

Burnett & Culli, for appellee.

TYSON J.

It appears that the indorsement made by appellant upon the supersedeas bond was made by him upon the advice of counsel that such an indorsement would exonerate his sureties upon the bond from all liability; and, upon being informed that it would not have this effect, he withdrew or revoked the order to the clerk contained in the indorsement made by him upon the bond, and directed the clerk to make a transcript of the proceedings in the cause and forward it to this court. He had the right to withdraw his offer to dismiss his appeal at any time before it was acted upon by this court. A dismissal could not have been effectuated except by an order made here. True, he had the right to direct the clerk not to make a transcript of the proceedings, and, had he not withdrawn this instruction to this effect, the appellee could have had a judgment of affirmance, not only against the appellant, but his sureties, also, upon production by him of the proper certificate of the clerk that an appeal had been taken. 1 Brick. Dig. p. 103. The motion to dismiss the appeal must be denied.

It appears that each count of the complaint was demurred to. However, the only recital in the judgment entry with respect thereto is in these words: "The defendant's demurrers to the complaint is overruled by the court." This is not sufficient as a judgment of the court upon the demurrers, and will not support an assignment of error. We must therefore decline to consider them. McDonald v. Railway Co. (Ala.) 26 So. 165, and authorities there cited.

The gravamen of the first, second, and third counts of the complaint is conversion of the mare, by the using of her in a way in violation of the terms of the agreement under which the defendant acquired possession of her. The fourth count, in averring the bailment, simply avers that "plaintiff let defendant have the use," etc. The word "let" as her used, taking into consideration the entire context of the count, upon the familiar principle that pleadings must be construed most strongly against the pleader, must be construed to mean "to lease; to grant the use and possession of a thing for compensation." Bouv. Law Dict. p. 185. So, then, this count is predicated upon a hiring of the mare by the plaintiff to the defendant for a reward; the negligent use by the defendant of her, in permitting her to be worked by a boy when injured; and the negligent use of her after the injury, from which she died. The fifth count alleges that the "defendant recklessly, carelessly, and wantonly so used" the mare that she died. This count is "bad for repugnancy, and really avers, in the alternative, either negligence or wantonness, since an act cannot be done through inadvertence, and at the same time be done wantonly; and, construing the count against the pleader, it must be held to charge negligence only." Railroad Co. v. Orr (Ala.) 26 So. 35, and authorities there cite. Thus construing it, it does not state a cause of action, for the obvious reason that it alleges no duty owing the plaintiff by the defendant, nor states any facts from which the law will imply the duty. Railway Co. v. Chewning, 93 Ala. 24, 9 So. 458; 14 Enc. Pl. & Prac. 331. If it were possible, however, under any phase of the case, to construe this count as charging wantonness, the plaintiff would derive no benefit arising out of such a construction, for the reason that such an allegation is wholly unsupported by the evidence in the case.

We will consider, in the inverse order of the pleadings, that phase of the case relying upon the negligence of the defendant resulting in injury to the mare, for a recovery. A bailment was created when there was a delivery of the mare by the...