Lisenby v. Capps

• Decision Date: 26 April 1917
• Docket Number: 4 Div. 709
• Citation: 200 Ala. 20,75 So. 332
• Parties: LISENBY v. CAPPS.
• Court: Alabama Supreme Court

75 So. 332

200 Ala. 20

LISENBY v. CAPPS.

4 Div. 709

Supreme Court of Alabama

April 26, 1917

Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.

Detinue by J.W. Capps against Monroe Lisenby. From a judgment for plaintiff, defendant appealed to the Court of Appeals, and the case was transferred to the Supreme Court. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Plaintiff amended his complaint by adding count 2 in trover and count 3 in case, which amendment was allowed over the objection of defendant. The following charges were refused to defendant:

(1) The court charges the jury that, if they believe the evidence in this cause, they must find for defendant on the third count of the complaint.

(3) The court charges the jury that the fact that the ox died in the possession of defendant does not make defendant liable unless the death of the ox resulted from overwork, or unless the ox died because of its diseased condition, which condition defendant had knowledge of at the time he worked the ox.

Lee &amp Glover, of Abbeville, for appellant.

T.M Espy, of Dothan, for appellee.

McCLELLAN J.

Originally this action, brought by appellee against appellant, was in detinue in a justice's court for the recovery of an ox. From that court the cause went to the circuit court. There the plaintiff was allowed to file additional counts, one in trover and one in case. The amendment was objected to; the objection was overruled; and, latterly, the defendant set up the statute of limitations of one year as a bar to a recovery on the count in case. Under the statute the amendment was properly allowed, and, when allowed, related back to the denial of a premise for the application of the limitation pleaded. Code, § 5367; Wilson v. Ratcliff, 73 So 84.

The real controversy between the parties was upon the issues tendered by the count in case. The plaintiff contended that the defendant, a bailee, had so misused the bailor's ox that it died. Case, not trover, is the appropriate remedy in such circumstances. Hitt Lumber Co. v. Ambrester, 192 Ala. 467, 68 So. 338.

The plaintiff testified that defendant told him "that he had had bad luck with the ox; that he had lost it; *** the ox was dead, and that he had come to settle for him." The defendant moved to exclude the statement of the witness that he (defendant) had come to settle for the ox, on the ground that it was an offer of compromise. It does not appear that the statement attributed by the witness to the defendant was made to either invite or to effect a compromise. All the recital shows is that the defendant acknowledged the death of the animal and came to settle therefor. The familiar rule of evidence whereby offers of compromise are excluded because they are not admissions within the rule cannot be invoked.

On the examination in...