Louisville & N.R. Co. v. Whitley

• Decision Date: 15 October 1925
• Docket Number: 7 Div. 583
• Citation: 105 So. 661,213 Ala. 525
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. WHITLEY.

105 So. 661

213 Ala. 525

LOUISVILLE & N.R. CO. v. WHITLEY.

7 Div. 583

Supreme Court of Alabama

October 15, 1925

Appeal from Circuit Court, Talladega County; R.B. Carr, Judge.

Action by J.C. Whitley against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326. Reversed and remanded.

Knox Dixon, Sims & Bingham, of Talladega, for appellant.

C.S Ellis, of Miami, Fla., for appellee.

MILLER J.

This is a suit by J.C. Whitley against the Louisville & Nashville Railroad Company for damages for negligently killing his dog. There was judgment by the court in favor of plaintiff based on a verdict of the jury in his favor, and from this judgment defendant has prosecuted this appeal.

There is only one count in the complaint, to which the defendant demurred on the ground it does not sufficiently appear from such count at what point or place the alleged injury took place. This demurrer was overruled by the court. This count alleges the injury causing the death of the dog occurred "while the defendant was running one of its engines and train of cars through said Talledega county, Ala., and at a point about 3 miles from Sylacauga in said county." This is the only averment therein indicating the place where the dog was injured and killed. This count does not allege whether the point or place of the injury or killing of the dog was about 3 miles east or west or north or south of Sylacauga. It avers it was "at a point about three miles from Sylacauga in said county." The place of the injury is not stated with sufficient certainty and definiteness as to acquaint the defendant with it so it could prepare its defense. This defect in the count was pointed out by the demurrer, and the trial court should have sustained and not overruled it. Western Ry. of Ala. v. Turner, 170 Ala. 643, 54 So 527; A.G.S.R.R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125; Weller & Co. v. Camp, 169 Ala. 275, 278, 52 So. 929, 28 L.R.A. (N.S.) 1106.

One need not be an expert or dealer in dogs in order to be competent and qualified to testify as to their value; but he may testify as to the value of the dog if he has had an opportunity for forming a correct opinion. Direct testimony as to the market value is in the nature of opinion evidence. Section 7656, Code 1923; section 3960, Code 1907. Each witness who testified as to the value of the dog showed he was competent; each knew the dog; and each had sufficient opportunity for forming a correct opinion as to its value; and the court did not err in allowing them to state, in their opinion, what was the reasonable market value of this dog at the time he was killed. The plaintiff lived and kept the dog at Sylacauga, and it was killed near there. It is true the questions propounded did not call for the reasonable market value of the dog at the time he was killed in that community. The questions should have been asked substantially in that form, but the court will not be placed in error for overruling the objections of defendant to the questions, for it had ample opportunity on cross-examination to secure from the witnesses their opinion as to the reasonable market value of the dog at the time of its death in the community where it was killed and kept by the owner, if their evidence on direct examination was not so intended by them. 6 Michie, Dig. p. 487, §§ 370-375.

The plaintiff and others, on the night of February 21, 1924, went fox hunting. They had this dog and others in an automobile. When they reached a place...