Coffee County v. Berry, 4 Div. 159

• Decision Date: 21 August 1951
• Docket Number: 4 Div. 159
• Citation: 36 Ala.App. 247,54 So.2d 790
• Parties: COFFEE COUNTY v. BERRY.
• Court: Alabama Court of Appeals

Page 790

54 So.2d 790

36 Ala.App. 247

COFFEE COUNTY v. BERRY.

4 Div. 159.

Court of Appeals of Alabama.

Aug. 21, 1951.

Rehearing Denied Oct. 2, 1951.

J. C. Fleming, Elba, for appellant.

C. L. Rowe, Elba, and Walters & Gibson, Troy, for appellee.

HARWOOD, Judge.

In the court below Worthy Berry sued Coffee County for damages to his motor truck resulting from the collapse of Dismukes bridge over Pea river.

At the conclusion of the evidence the lower court gave the general affirmative charge, with hypothesis, in favor of the plaintiff.

From the verdict and judgment in favor of the plaintiff the defendant below, Coffee County, perfected its appeal to this court.

The only point raised by appellant's brief and argument questions the action of the lower court in giving the general affirmative charge with hypothesis in favor of the plaintiff below, because of the alleged insufficiency of the evidence tending to show that Dismukes bridge was built by an independent contractor rather than by Coffee County itself. See Section 57, Title 23, Code of Alabama 1940.

Our review will therefore be limited to this phase of the case.

At the opening of the trial below the following stipulation of certain facts was made between the parties:

'It Is Agreed Between the Parties, That the claim against the County, herein sued for was duly and legally filed with the Court of County Commissioners of Coffee County, Alabama; that the same was denied, and that the suit was filed immediately after the claim was denied.

'It Is Further Agreed, That if there was a contract between the County and some other person or persons for the erection of said bridge, that the original of said contract cannot be found, and it is not of record in the Probate Office of Coffee County, Alabama, and was either obliterated, lost or destroyed; and that there was a flood in Elba, Alabama in 1929 which did obliterate or destroy certain records; but it is not now known from the public records whether there was a contract in existence or not.'

The loss and destruction of these records justified the plaintiff in making out his proof by secondary evidence. Walker County v. Burdeshaw, 232 Ala. 621, 169 So. 227.

The plaintiff introduced as a witness Mr. W. E. DuBose, who was 83 years of age, and whose hearing and sight were poor.

Mr. DuBose and Mr. Dunnavant had worked on the bridge when it was constructed.

The following excerpts show the tenor of his testimony on direct examination:

'A. I don't remember it has been so long, Squire, but it is like this: Me and Mr. Dunnavant contracted to haul the three bridges, and then after we did not the Converse Bridge Company put the steel department up and then they let us have the abutments.

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'Q. Speaking of the contract that they had, you have already told about the officials of the Converse Bridge Company telling about the specifications? A. Yes sir.

'Q. And how to place them? A. Yes sir.

'Q. And you were working there with them? A. We were putting the approaches to the bridge, me and Mr. Dunnavant, you see. The contract was, we was to dig a ditch six feet deep, put down a mudsill, put down pilings and put capsills on top of that.

'Q. Who did the steel work before you all got around to that? A. Converse Bridge Company, as we knowed them as the Converse Bridge Company,--just a crew of men. I just knew them as men, but we considered them as Converse Bridge Company. As to knowing ary man, I didn't personally, I don't think.'

On cross examination this witness testified that he was not present when the men who worked for the Converse Bridge Company were employed, so he did not know who they were working for, and could not say they were county employees, though when they were working there they were said to be working for the bridge company.

This witness, and also one of the appellant's witnesses also testified that there is a plate attached to the bridge showing it to have been built by the Converse Bridge Company in 1897.

The plaintiff below also offered in evidence certain records of the Commissioners Court of Coffee County, being minutes of the proceedings of the Commissioners Court relative to certain payments authorized by the Commissioners Court. The genuineness of these records was stipulated between counsel.

These minutes show that in July 1897 the Treasurer of Coffee County was authorized to pay W. E. DuBose fifty dollars 'for buttments on Dismukes Bridge,' and sixty dollars for 'work on Dismukes Bridge.' It was further ordered that the Treasurer pay J. J. Dunnavant sixty dollars for 'work on Dismukes Bridge.'

There was also offered in evidence from the records of the...