Davis v. Clark

• Decision Date: 20 November 1923
• Docket Number: 8 Div. 87.
• Citation: 98 So. 37,19 Ala.App. 468
• Parties: DAVIS, AGENT, ETC., v. CLARK.
• Court: Alabama Court of Appeals

98 So. 37

19 Ala.App. 468

DAVIS, AGENT, ETC., v. CLARK.

8 Div. 87.

Court of Appeals of Alabama

November 20, 1923

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action for damages by Ellen Clark against James C. Davis, as agent under Transportation Act, 41 Stat. 456. From a judgment for plaintiff, defendant appeals. Affirmed.

See Louisville & N. R. Co. v. Clark, 205 Ala. 152, 87 So. 676, 14 A. L. R. 695.

Eyster & Eyster, of Albany, for appellant.

Jno. R. Sample, of Hartsells, and Callahan & Harris, of Decatur, for appellee.

SAMFORD J.

This is the second appeal in this case. L. & N. R. R. Co. v Clark, 205 Ala. 152, 87 So. 676, 14 A. L. R. 695. It is conceded by appellant in brief that, under the holding of the Supreme Court on former appeal, it is settled that the plaintiff has a cause of action. In brief of counsel for appellant the grounds insisted upon as error to a reversal are succinctly stated as follows:

"We think that the court has allowed the plaintiff undue latitude in the matter of proof of damages."

These questions are presented by motion to strike out certain parts of the complaint, objections to evidence, and written charges.

It is insisted by counsel for appellee that, as the bill of exceptions shows no ruling on the motion to strike portions of the complaint, this court cannot pass upon the question. Such, however, is not now the law. Acts 1915, p. 598 provides:

"That all motions which are made in writing in any Circuit Court or any Court of like jurisdiction in any cause or proceeding at law, shall, upon an appeal become a part of the record; and the ruling of the court thereon shall also be made a part of the record, and it shall not be necessary for an exception to be reserved to any ruling of the court upon such motion."

See Stover v. State, 204 Ala. 311, 85 So. 393. The later act of 1915 (page 722) approved September 22, 1915, makes a different rule governing motions for new trial, but in no way affects other motions.

The motion to strike contained many specifications, and assigned 14 grounds for the motion. The judgment of the court was that the motion to strike from the complaint "mental pain and anguish" is granted, and as to other parts it was overruled. This in effect eliminated from the complaint all claim for damages by reason of mental pain and anguish in whatever form alleged, leaving in the complaint a claim for physical damage in conformity to the rules of obtaining in cases governed by the law of interstate commerce. L. &amp N., etc. v. Clark, 205 Ala. 152, 87 So. 676, 14 A. L. R. 695. The rulings of the court upon the admissibility of testimony were such as to confine the inquiry to the issues made by the pleading.

The excerpt from the court's oral charge made the basis of assignment 143 is not embraced in the bill of exceptions, and cannot be considered.

This leaves us to consider refused charges 49, 55, and 56 requested by defendant. These charges present the same questions as were presented in the former appeal in this case in refused charges 8, 9, 10, and 15, as to which the court said:

"The special circumstances of plaintiff's journey to Hartsells were declared by the pleading to have been disclosed to defendants, and it was shown by the evidence that defendants' agent at Decatur was informed of such special and pertinent circumstances. Though the evidence shows her long detention in Decatur, that during the evening of January 28th the weather changed materially in

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