Cohn & Goldberg Lumber Co. v. Robbins

• Citation: 159 Ala. 289,48 So. 853
• Parties: COHN & GOLDBERG LUMBER CO. v. ROBBINS.
• Decision Date: 18 February 1909
• Court: Supreme Court of Alabama

48 So. 853

159 Ala. 289

COHN & GOLDBERG LUMBER CO. v. ROBBINS.

Supreme Court of Alabama

February 18, 1909

Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge.

Action by W. O. Robbins, Jr., against the Cohn & Goldberg Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dowdell C.J., and McClellan, J., dissenting.

The cause of action is based upon the injury done to the horse and buggy of plaintiff by being run into by a team of oxen and wagon belonging to the defendant and at the time under the control and management of one L. F. Hood, a servant of the defendant. While Robbins was being examined as a witness and had testified that Mrs. Lancaster was in the buggy and was driving, meeting the team of oxen, he was asked by his counsel: "Did you hear Mrs. Lancaster say anything?" Objection being overruled to this question the plaintiff put it in the following form: "Now, then did you hear Mrs. Lancaster say anything to the driver?" And the witness answered: "I could see that Mrs. Lancaster was anxious." And counsel asked the witness the following question: "So anxious that she got the impression on her part that she was in danger?" And the witness answered: "Yes, sir." Then the bill of exceptions shows that the defendant objected to the question and answer because it called for irrelevant testimony, and because the evidence sought was hearsay, and the court remarked: "I don't think so, and I overrule the objections." L. F. Hood was called as a witness for plaintiff, and testified that after the accident he called Mr. Robbins, and "he asked me whose team it was," and plaintiff's attorney then asked the witness: "Whose property did you tell him it was?" Objection was interposed and overruled, and the witness answered: "I told him it was Mr. Goldberg's and Mr. Cohn's, and Mr. Norris', I suppose." This is the evidence referred to in the opinion.

The following charges were requested by, and refused to, the defendant:

"(2) If you believe from the evidence that L. F. Hood was the agent of the Cohn & Goldberg Lumber Company, and that the team of steers which collided with the horse and buggy of Robbins belonged to the Cohn & Goldberg Lumber Company, and that, immediately prior to or at the time of the collision between said team and the buggy of said Robbins, said Hood did all that a prudent and careful driver could have done to prevent a collision, then you cannot find for the plaintiff in this case.

"(3) If you believe from the evidence in this case that L. F. Hood, the driver of said team, was a prudent driver of steers, and that he used every means in his power to prevent a collision between the dray and the steers in his charge and the buggy and horse in the charge of W. O. Robbins, Jr., then you must find for the defendant.

"(4) If you believe from the evidence in this case that the said steers and wagon were under the control of an ordinarily skillful and prudent driver, no matter whether said driver was in the employ of the Cohn & Goldberg Lumber Company or J. E. Wamble, and that at the time of the accident the steers became suddenly frightened, and that the driver did all that a skillful and prudent driver of steers could have done under the circumstances to prevent the accident, then you cannot find a verdict for the plaintiff in this case.

"(5) If you believe from the evidence in this case that the injury to the horse and buggy of W. O. Robbins, caused by the steers and team colliding with same, was occasioned by a sudden fright on the part of the steers, and that the driver in charge of the same did all that a reasonably prudent and careful driver could do to prevent the accident, then plaintiff cannot recover in this case.

"(6) If you believe that L. F. Hood, who, it is shown by the undisputed evidence, was in charge of the steers and wagon causing the injury to the plaintiff, did all that was possible to be done at the time of the accident to prevent the same, and that he was an ordinarily prudent and careful driver of steers, and accustomed to drive same, then you cannot find for the plaintiff in this case.

"(7) The court charges the jury that, unless they believe from the evidence that the steers were the property of Cohn & Goldberg at the time of the accident or damage complained of, then you must find for the defendant."

"(12) Public bridges are for the use of steers and drays, as much as for horses and buggies."

Frank W. Lull and Gunter & Gunter, for appellant.

Phares Coleman and Holly & McMorris, for appellee.

DOWDELL C.J.

The general rule is that the declaration of one made while in the actual possession and control of personal property, and explanatory thereof, is admissible in evidence, and this upon the idea that it is a part of the res gestæ of such possession. Mayfield's Digest, vol. 3, p. 453, § 355. We think, however, when, as in the present case, the person whose declaration is sought to be proven is himself the witness testifying, and not being sought for purpose of impeachment, such evidence would be of little probative force, since the sworn testimony of the witness as to the facts would be better evidence than his unsworn declaration. The majority of the court are of the opinion, and so hold, that under the facts of this case the declaration of Hood, admitted in evidence, as to the ownership of the team, made by him while in the possession and control of the same as a driver, does not come within the principle above stated as to declarations, made by one in possession of property, explanatory of such possession, and that in the admission of this evidence the court committed reversible error. The writer, with whom McCLELLAN, J., concurs on this point, is of the opinion that if the declaration of one in possession, explanatory of such possession, be admissible in evidence upon the theory of res gestæ of the possession, which seems to be the universal rule, such declaration explanatory of possession would not be rendered incompetent because it might tend to show ownership of the property in a third party.

The plaintiff was permitted to prove by his witness Robbins, against the objection of the defendant, that a Mrs. Lancaster, whom witness passed in a buggy on the bridge just preceding the collision between the ox team and the plaintiff's buggy, "was so anxious that she got the impression on her part that she was in danger." In the admission of this evidence against the defendant's objection the court was in error. The anxiety of Mrs. Lancaster was wholly irrelevant and immaterial, and, besides, the witness was not competent to testify as to the mental status of Mrs. Lancaster. The majority of the court, however, are of the opinion that, since it appears from the bill of exceptions that the objection was not made to the question until after the witness answered, the objection came too late, and that the action of the court in overruling the objection and admitting the evidence should not, for this reason, be revised, notwithstanding the court, in overruling the objection, expressed the opinion that the evidence was competent. The writer of the opinion thinks that, since the court evidently based its ruling upon the competency of the evidence, and not upon the ground that the objection came too late, which latter ground is one addressed to the discretion of the court, the question is one proper for revision by this court.

There was evidence tending to show that the driver of the ox team was an experienced driver, and also evidence showing how he was managing the team at the time of the accident. On this evidence it was competent for the witness Norris, who was shown to be an experienced and expert driver of ox teams,...