Mobile Light & R. Co. v. Thomas

• Decision Date: 13 November 1917
• Docket Number: 1 Div. 216
• Citation: 77 So. 463,16 Ala.App. 313
• Court: Alabama Court of Appeals
• Parties: MOBILE LIGHT & R. CO. v. THOMAS. [*]

77 So. 463

16 Ala.App. 313

MOBILE LIGHT & R. CO. v. THOMAS. ^[*]

1 Div. 216

Court of Appeals of Alabama

November 13, 1917

Rehearing Denied Jan. 15, 1918

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Elijah Thomas against the Mobile Light & Railroad Company.From a judgment for plaintiff, defendant appeals.Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Webb McAlpine & Grove, of Mobile, for appellee.

BRICKEN J.

This action was brought to recover damages for personal injury suffered by plaintiff, and damages to the wagon in which he was riding at the time he was struck by the defendant's street car.

There are 16 assignments of error.Nos. 1 and 2 are predicated upon rulings sustaining demurrers to certain pleas filed by the defendant.Nos. 3 and 16 assign as error certain rulings of the court upon the admission of testimony during the trial of the case.None of these assignments are insisted upon in brief of appellant's counsel.They must therefore be regarded as waived.L. & N.R.R. Co. v. Holland,173 Ala. 675, and cases cited on page 694, 55 So. 1001.

The remaining assignments seek to have this court to review the ruling of the trial court in the giving of written charges requested by the plaintiff and the refusal of written charges requested by the defendant.These charges do not appear in the record proper, but only in the bill of exceptions.On this state of the record, the assignments of error predicated upon them are not reviewable.General Acts 1915, p. 815;Malone v. State,76 So. 469;Carter v State,76 So. 468;Southern Ry. Co. v. Propst & Duckworth,76 So. 470;Dempsey v. State,72 So. 773.

Affirmed.

On Application for Rehearing.

PER CURIAM.

The appellant questions the soundness of the holdings in the cases cited in the foregoing opinion, to the effect that charges which do not appear in the record proper, but appear in the bill of exceptions, are not properly presented for review.The ground on which appellant questions these holdings is that special charges requested by the parties and given or refused and properly indorsed as required by the statute are not made thereby a part of the record proper, and can only become a part of the record by being incorporated in the bill of exceptions.

The statute(Code 1907, § 5364) as amended by act approved September 25, 1915, provides:

"Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written; and it is the duty of the judge to write 'Given' or 'Refused' as the case may be, on the document, and sign his name thereto, which thereby becomes a part of the record, and charges which are given must be taken by the jury with them on retirement, and those refused must be retained by the clerk.The court shall after the conclusion of his charge to the jury read such written charges as he has given for the parties in a clear and audible voice, saying to the jury, 'These are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you.'The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties.In case of appeal the charges must be set out in the transcript in the following manner: (1) The charge of the court; (2) the charges given at the request of the plaintiff or the state; (3) the charges given at the request of the defendant; (4) the charges refused to the appellant.It shall not be necessary 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.Every general charge shall be in writing, or be taken down by the court reporter as it is delivered to the jury."

Before the amendment of this section of the Code it was repeatedly held that written charges indorsed as required by the statute were a part of the record, but that it was incumbent upon the appellant who sought to review the giving or refusal of such charges to set them out in the bill of exceptions.Choate v. Ala. Gr. South. R.R. Co.,170 Ala. 591, 54 So. 507;W.U.T. Co. v. Pauley,157 Ala. 615, 47 So. 654;Gambill v. Fuqua,148 Ala. 459, 42 So. 735;Highland Ave. & Belt R.R. Co. v. South,112 Ala. 642, 20 So. 1003;Baker et al. v. Lauderdale & Worthy,14 Ala.App. 224, 69 So. 299;Clark v. State,14 Ala.App. 633, 72 So. 291.

In Gambill v. Fuqua, supra, it was said:

"Counsel for appellant in their brief on application for rehearing contend that this court had no right to assume that certain counts of the complaint were eliminated by charges given, as those charges were not incorporated in the bill of exceptions, and cite a list of authorities to the effect that special charges will not be considered for reviewing the action of the trial court, unless set out in the bill of exceptions.We adhere to the rule that it is incumbent upon the appellant to set out in the bill of exceptions charges the giving or refusal of which is the basis of an assignment of error, and that the action of the trial court will not be reviewed in that respect unless said charges appear in the bill of exceptions.This rule, however, does not prevent this court from looking to the entire transcript, in determining whether or not the trial court committed errors, or whether or not errors, if committed, were errors without injury.And, when the record shows that the general charge was given for the appellant as to certain counts, we will not review the action of the trial court upon the pleading relating to said charged-out counts, though such charges do not appear in the bill of exceptions.Highland Ave. & Belt R.R. Co. v. South.112 Ala. 642[20 So. 1003]."

In Choate v. A.G.S.R.R. Co., supra, the court said:

"Our statute requires trial courts to give or refuse, and so mark and sign, any number of written charges moved for by either party, and provides that such charges then become a part of the record.*** It is not necessary for either party to except to the giving of any such charges requested by his adversary, nor to the refusal of those so

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