Ex parte Hines

• Decision Date: 10 June 1920
• Docket Number: 1 Div. 150
• Citation: 205 Ala. 17,87 So. 691
• Parties: Ex parte HINES, Director General of Railroads. v. McMILLAN. HINES
• Court: Alabama Supreme Court

87 So. 691

205 Ala. 17

Ex parte HINES, Director General of Railroads.

HINES v. McMILLAN.

1 Div. 150

Supreme Court of Alabama

June 10, 1920

Rehearing Denied Nov. 6, 1920

Sayre and Gardner, JJ., dissenting.

Certiorari to Court of Appeals.

Barnett Bugg & Lee, of Monroeville, and Geo. W. Jones and E. Perry Thomas, both of Montgomery, for appellant.

Hybart Hare & Ratcliffe, of Monroeville, for appellee.

THOMAS J.

The writ of certiorari to the Court of Appeals will be granted for the reason indicated in subdivision 3.

1. Did the Court of Appeals err in striking assignment of error numbered 9, based upon an exception to a portion of the oral charge of the court shown only in the record proper, not in the bill of exceptions? Under the statute of 1915 (pages 815, 816), it was made unnecessary "to set out the charges in the bill of exceptions or state therein that an exception was reserved to the giving or refusing of charges requested, but it shall be presumed that each charge was separately requested and a separate exception reserved as to the giving or refusal thereof." The further provision therein that the general charge "shall be in writing, or be taken down by the court reporter as it is delivered to the jury," or other provision of the act does not relieve the party excepting to any portion of the general charge of specifically indicating the same to the court during the trial, and to make such part to which exception is reserved a part of the bill of exceptions by incorporating therein such exception. This is the effect of our recent cases. Ex parte Mobile L. & R. Co., 201 Ala. 493, 78 So. 399; Britton v. State, 15 Ala.App. 584, 74 So. 721; McPherson v. State, 198 Ala. 5, 73 So. 387; Russell v. State, 201 Ala. 572, 78 South 916, 918; Pan-Amer. Life Ins. Co. v. Carter, 202 Ala. 237, 80 So. 75; Sloss-Sheff. S. & I. Co. v. Yancey, 202 Ala. 458, 80 So. 842.

2. We find no reversible error in the discussion of pleadings by the Court of Appeals having application to Code, §§ 5653, 5654. A proper construction of the plea to which demurrer was overruled cannot be had since the same is not before us, and no opinion is expressed as to its sufficiency.

3. On demurrer all pleading must be tested by its weakest averments. Nat. Park Bank v. L. & N.R.R. Co., 199 Ala. 192, 74 So. 69; G., F. & A. Ry. Co. v. Sharpe, 202 Ala. 530, 76 So. 856. Plaintiff's "special replication to plea No. 2" was subject to demurrers interposed. It was in effect that the fence erected along a definite right of way "was defective and not so constructed as not to prevent said mule from going over the same." Defendant was not required by law to construct its fence and "cattle guard" at the place in question with a view to restraining plaintiff's mule or any particular mule that was injured; on the contrary, the duty of defendant company in the premises was only to construct and maintain such a fence and cattle guard as to be reasonably sufficient to restrain ordinary stock, including mules in general. A. & B.A.L. Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73, 36 L.R.A. (N.S.) 998, note; Martin v. A., T. & S.F. Ry. Co., 92 Kan. 595, 141 P. 599, L.R.A.1915B, 134; Stewart v. Bloomington, etc., Co., 180 Ill.App. 608; Midland Valley R. Co. v. Bryant, 37 Okl. 206, 131 P. 678; Comings v. Hannibal & C.M.R. Co., 48 Mo. 512; N., C. & St. L. Ry. Co. v. Russell, 129 Ky. 14, 110 S.W. 317.

A rational statement of the general rule as to the sufficiency of fences and cattle guards along and on the right of way of a railway company is contained in 33 Cyc. 1201, as follows:

"Cattle guards to be sufficient need not be so constructed as to constitute an impassable barrier so that under no circumstances could an animal cross them, or so as to turn stock which are wild, breachy, or in the habit of fence jumping, or when under fright or excitement, but need only be such as are reasonably sufficient to turn ordinary stock; and if an animal goes upon the track by jumping over such a cattle guard and is injured the company will not be liable in the absence of negligence."

The intimation in S.A.L. Ry. Co. v. Wright, 148 Ala. 27, 29, 41 So. 461, 462, tends to support the foregoing text. It is:

"The fourth plea to which a demurrer was sustained neither traverses nor confesses and avoids the averments of the complaint. It contains no averment that the guards erected and maintained by defendant were reasonably sufficient for the purpose for which they were erected. Non constat, they may be wholly insufficient, as alleged in the complaint; and clearly, if they are, the fact that they are in use by all well-regulated railroads does not and cannot exempt the defendant from liability for a violation of the duty which it owed the plaintiff."

See, also, 43 L.R.A. (N.S.) 457, note.

The third ground of the demurrer to special replication should have been sustained.

The writ of certiorari is granted.

ANDERSON, C.J., and McCLELLAN, SOMERVILLE, and BROWN, JJ., concur.

SAYRE and GARDNER, JJ., dissent.

On Rehearing.

THOMAS J.

In short, the two contentions of petitioners for rehearing are: (1) That of visitation of a demurrer--the demurrer to the bad replication to the bad plea; and (2) that the statute under which plea 2 was drawn is unconstitutional. Petitioner (appellee in the Court of Appeals) insists that the cause should not be reversed because of error made in the ruling on demurrer to the replication because it was interposed to a plea that was also open to demurrer. This subject has been an interesting one to the courts. The question then for decision is: Was not the visitation of demurrer within the mischief intended to be guarded against by section 5340 of the Code of 1907?

Of the offices of the several divisions of pleading observation is made that in each successive stage of the process subsequent to defendant's plea new matter advanced by each party must be not only such as will form a sufficient answer in law to what has before been alleged against him, but such as also will fortify what he himself has before pleaded; and if matter pleaded by either party does not go in support of what has been before alleged by himself, the pleading is ill, even though it might, in itself, be a good answer to the adverse allegations which immediately precede it, that he who ultimately prevails must prevail upon the grounds first assumed on his part, and which he can maintain in his subsequent pleading only by repelling what has been advanced against him in the intermediate allegations of his adversary. Mr. Gould thus puts it:

"The plaintiff must therefore prevail, if at all, upon the facts stated in the declaration; the defendant, upon those stated in the plea. And whatever the parties may respectively allege in their subsequent pleadings must all go to fortify the declaration on the one side, and the plea on the other. If it were otherwise, the foundation of the action and of the defense might be entirely changed in each successive stage of the pleadings; and the great object of all pleadings might be thus defeated. The replication must therefore so answer the plea as to support the declaration; the rejoinder, in answering the replication, must support the plea; and in the same manner, the surrejoinder must support the replication, the rebutter, the rejoinder, and the surrebutter, the surrejoinder. The process being thus conducted, that which is last pleaded on either side necessarily goes in support of what was first pleaded on the same side." Will's Gould on Pleading (6th Ed.) p. 93.

Out of such rules of pleading came the general rule that a demurrer opens the whole record so that judgment must be rendered against the first party whose pleadings are defective in substance. "A bad plea, as answer to a bad declaration or complaint or a bad reply to a bad plea or answer, etc., must be held good on demurrer." This rule found early statement (1805) by Mr. Chief Justice Marshall as follows:

"There were several pleadings, *** a bad declaration, a bad rejoinder, and a special demurrer by the plaintiff to this bad rejoinder. When the whole pleadings are thus spread upon the record by a demurrer, it is the duty of the court to examine the whole, and to go to the first error. When the special demurrer is by the plaintiff, his own pleadings are to be scrutinized, and the court will notice what would have been bad upon a general demurrer." Cooke v. Graham's Adm'r, 3 Cranch, 229, 235, 2 L.Ed. 420.

It has been often applied. Rose's Notes on United States Reports, pp. 232, 233. For a time it was followed in this jurisdiction. Bender v. Graham, Minor, 269; Sommerville v. Merrill, 1 Port. 107, 109; Rogers & Sons v. Smiley et al., 2 Port. 249, 260; Mason v. Craig, 3 Stew. & P. 389; Cummings v. Edmunson, 5 Port. 145, 150; Hargroves v. Cloud, 8 Ala. 173, 176; Ogden & Ellison v. Smith & Raymond, 14 Ala. 428, 432; Chaudron v. Fitzpatrick, 19 Ala. 649, 651; Patton v. Hammer, 28 Ala. 618, 622; Williams v. Moore, 32 Ala. 506, 508.

The foregoing authorities by our court were before the adoption of the Code of 1852 (February 5th), which contained the provision, in section 2253, that--

"No demurrer in pleading can be allowed, but to matter of substance which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer."

The same has been incorporated in all subsequent Codes (Code 1907, § 5340 [[[3303] [2690] [3005] [2656]); and of its provisions requiring specification of the grounds of demurrer it has been held that a demurrer to a plea is not to be visited upon the complaint or a demurrer to a replication is not to be visited upon a plea. Elliott v. Holbrook, etc Co., 33 Ala. 659, 667; Western Assur. Co. v. McGlathery, 115 Ala. 213,...