Hines v. Miniard

• Decision Date: 11 May 1922
• Docket Number: 6 Div. 522.
• Citation: 208 Ala. 176,94 So. 302
• Parties: HINES, DIRECTOR GENERAL, v. MINIARD.
• Court: Alabama Supreme Court

94 So. 302

208 Ala. 176

HINES, DIRECTOR GENERAL, v. MINIARD.

6 Div. 522.

Supreme Court of Alabama

May 11, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Mary Miniard for damages against Walker D. Hines, as Director General of Railroads. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Anderson C.J., and Gardner, J., dissenting in part.

Percy Benners & Burr, of Birmingham, for appellant.

Black & Harris, of Birmingham, for appellee.

THOMAS J.

The first appeal, decided June 30, 1920, was on the issue of wanton misconduct of Conductor Wakefield after plaintiff had complained to that official to prevent a continuation of abuse and insult. Hines v. Miniard, 204 Ala. 514, 86 So. 23, 12 A. L. R. 238. The gravamen of count A, on which the second trial rested, was that the injury plaintiff suffered was proximately caused by the gross and wanton negligence of the defendant's servants, acting within the line and scope of their employment in and about the carriage of plaintiff as a passenger.

Defendant requested general affirmative charges and special charge C, that "this suit is not a suit against the Illinois Central Railroad Company and the Illinois Central Railroad Company has no interest in this suit," which were refused. A companion charge (5) given for defendant was: "You cannot give damages in this case for the purpose of punishing the Illinois Central Railroad Company."

The Illinois Central Railroad Company, originally made a defendant, was stricken on plaintiff's motion on February 10, 1921, after the discussion on the subject of proper parties to such actions (Crim v. L. & N., 206 Ala. 110, 89 So. 376, decided January 13, 1921; Canidate v. Western Union, 203 Ala. 675, 85 So. 10, decided January 15, 1920), and before the final decision in Charlton v. A. G. S., 206 Ala. 341, 89 So. 710. The railroad company, being erroneously made a party defendant, and stricken, thereafter had no interest in the suit against the Director General for an injury inflicted during the month of April, 1919. Pertinent statutes and orders are set out in Crim v. L. & N., supra, and given last consideration in Charlton v. A. G. S., supra; Currie v. L. & N., 206 Ala. 402, 90 So. 313, 19 A. L. R. 675; Mo. Pac. R. Co. v. Ault (June 1, 1921) 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087; Norfolk-Southern v. Owens, 256 U.S. 565, 41 S.Ct. 597, 65 L.Ed. 1093.

It must be conceded that at the time of the second trial the final responsibility as to proper defendants to such action-whether the government alone or in conjunction with the corporation whose transportation properties were being operated by the government-was a matter of uncertainty.

The bill of exceptions discloses that there was a difference of opinion at the time of the trial as to the final responsibility of defendants in such actions, which was evidenced by the respective arguments of counsel to the jury on the question. The cogent reasons on which was rested the decision in Standridge v. Martin, 203 Ala. 486, 84 So. 266, have application to the refusal of charge C. The giving of charge 5 for defendant left the imputation, under the argument of counsel, of the uncertainty or extent of liability that the jury may award as damages, as may affect the Illinois Central Railroad Company. The Director General was trying to have the jury instructed that the government alone was responsible for compensation for damages, and not "some invisible corporation whose business it is to stand for and to pay damages" as may be awarded by the jury. It will be observed that the trial (February 10, 1921) was before rendition of the decision of the Supreme Court of the United States on June 1, 1921, in Missouri Pacific R. Co. v. Ault, supra.

The stenographic report of the testimony of R. H. Miniard was read to the jury against due objections and exceptions. In attempting to lay a predicate to justify secondary evidence, plaintiff was asked of the whereabouts of Mr. Miniard at the time of the second trial:

"Q. Where is he living now?

"Counsel: We object to that.

"A. Gary, Ind."

Objection by defendant being sustained by the court, plaintiff asked the witness:

"Q. Where is he now? A. He is in Gary, Ind. Q. How long has he been living there? A. He has been there a little more than a year now."

Thereupon the court explained to the jury that the testimony was admitted on the ground that the witness was out of the jurisdiction, and his testimony having been taken on a former trial of this case, with the right of cross-examination, made the same admissible "in so far as the questions and answers are competent." The effect of the decisions is that, when evidence given at a former stage of the same action or on a former trial, where the parties and issues were substantially the same, and the witness was subject to cross-examination, or may have been so examined, by the party against whom the same is offered, and there is inability to produce the witness (on a subsequent proceeding by reason of his death, insanity, or such other disability, or by his permanent or indefinite absence from the jurisdiction of the court), and his return is contingent, uncertain, or conjectural, then the former evidence is admissible. Long v. Davis, 18 Ala. 801; Yarbrough Turp. Co. v. Taylor, 201 Ala. 434, 78 So. 812; Duncan v. Watson, 198 Ala. 180, 184, 73 So. 448; Ala. Consolidated C. & I. Co. v. Heald,

171 Ala. 263, 270, 55 So. 181; 1 Greenl. Ev. §§ 163, 166; 1 Whart. Ev. §§ 177, 180; 2 Jones, Ev. §§ 336, 343; Hughes, Ev. p. 57 et seq.; Mayor, etc., v. Day, 3 Taunton's Eng. Com. Pl. Rep. 262, Mansfield, C.J.

In the application of the exception to the general rule requiring best evidence to be offered of permanent or indefinite absence from the jurisdiction of the court difficulty is encountered. The earlier decisions declared for a more liberal application of the exception to the rule in making out a prima facie case of indefinite or uncertain absence from the jurisdiction than is given expression in the later cases. In Long v. Davis, supra, witness "had gone to Tennessee"; in Mims v. Sturdevant, 36 Ala. 636 had "removed to Texas"; without other showing this was treated, prima facie, a permanent absence; Harris v. State, 73 Ala. 495, 497, subp na had issued for witness, and returned "not found," and, her absence from the state not being shown, her deposition before committing magistrate was inadmissible; and Pruitt v. State, 92 Ala. 41, 9 So. 406, the witness "left Leighton about two months" before the trial, went "to the state of Arkansas," and was "still absent from the state," held evidence prima facie admissible. In Perry v. State, 87 Ala. 30, 6 So. 425, the witness "was out of the state, beyond the jurisdiction of the court," and she stated to the magistrate that "she was going to leave, for fear the defendant would charge her" with homicide; her testimony as detailed by the magistrate was competent. So in Lowe v. State, 86 Ala. 47, 52, 5 So. 435, 436, where the witness "was out of the state, having gone to Washington Territory," and stated theretofore that he never intended to return; and in South v. State, 86 Ala. 617, 6 So. 52, the witness' permanent absence from the state was shown. In the case of Matthews v. State, 96 Ala. 62, 11 So. 203, the witness residing out of the state at the time of the trial having removed from the state permanently or indefinitely, secondary evidence was admitted to prove what he had deposed on preliminary investigation. The predicates for secondary evidence were held insufficient. Lucas v. State, 96 Ala. 51, 11 So. 216, where the residence of the absent witness was not shown at the time of trial; he was seen several months before at work in Atlanta, Ga., and also had been seen at work in Birmingham, Ala.; and Thompson v. State, 106 Ala. 67, 17 So. 512, where the witness was a minor who had gone from his father's home in Alabama to Florida for a temporary absence; no summons had issued for him, and he had stated in Florida a short time before the trial that he had a job of work there, and intended to remain. Predicates held sufficient were where the permanent residences and places of business of the absent witnesses were shown to be in another state, and that diligent and fruitless search had been made for the witnesses in this state. Burton v. State, 107 Ala. 68, 18 So. 240; Mitchell v. State, 114 Ala. 1, 22 So. 71; Burton v. State, 115 Ala. 1, 22 So. 585. Where the absent witness declared at the time of the preliminary trial that he resided in Pensacola, and a short time before the second trial was seen at his residence there, and the sheriff with process could not find him, in the county, was sufficient. Lett v. State, 124 Ala. 64, 27 So. 256. In Percy v. State, 125 Ala. 52, 27 So. 844, two predicates were sought to be laid: Absent witness Forsythe, a soldier, whose permanent residence was Massachusetts, and temporarily located as a soldier at Huntsville, and removed therefrom with his company, was not found by the sheriff with subp na; held prima facie sufficient. Not so as to the witness Ed White, not an enlisted man (whose residence was not shown), and who drove a team for the company of the army that had been removed from Huntsville. In Jacobi v. State, 133 Ala. 1, 32 So. 158 (Jacobi v. Alabama, 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106), the residence of the witness was in Georgia, and before removing from Alabama she declared that she would not return for second trial. This, with the failure of the sheriff with process to find her within the jurisdiction of the court, held admissible. And in Wilson v. State, 140 Ala. 43, 46, 51, 37 So. 93, witness' permanent residence was in Tennessee, and...