Morris v. Corona Coal Co.

• Decision Date: 08 April 1926
• Docket Number: 6 Div. 443
• Parties: MORRIS v. CORONA COAL CO.
• Court: Alabama Supreme Court

109 So. 278

215 Ala. 47

MORRIS v. CORONA COAL CO.

6 Div. 443

Supreme Court of Alabama

April 8, 1926

Rehearing Granted June 24, 1926

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Action for damages by S.N. Morris against the Corona Coal Company. From a judgment for defendant, plaintiff appeals. Affirmed on rehearing.

W.C Davis and R.A. Cooner, both of Jasper, for appellant.

A.F Fite, of Jasper, for appellee.

THOMAS J.

The many assignments of error are properly grouped and argued. For convenience we will consider the same in the order of their presentation. The verdict and judgment was of date December 19, 1924, the acceptance of service of motion for new trial was of date December 27, 1924, and the motion was called to the attention of the court on that date and duly passed to January 5, 1925, for hearing. On that date:

"The case was called for hearing on the motion, when the defendant appeared and objected to any action being taken by the court on the motion, and moved the court to strike the motion, on the ground, among others, that the same was not filed until after the expiration of the term in which the cause was tried and verdict returned and judgment rendered. The case was then taken under advisement by the court and passed to January 12, 1925.

"And now on this day, after consideration, the court is of the opinion that the objection interposed by defendant to action on the motion is well taken, and that this court is without jurisdiction to hear and pass upon plaintiff's motion for a new trial. Accordingly, it is the order and judgment of the court that said motion for a new trial is null and void, and that the same be and it is hereby stricken from the files in this cause. This January 12, 1925."

We judicially know that the term of the court at which the case was tried expired by operation of law on the last Saturday before Christmas of the year 1924, and that the new term began on the first Monday in January, 1925. Code 1923, § 6667; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Kyser v. American Surety Co., 213 Ala. 614, 105 So 689. The motion was made and called to the attention of the court during the recess thereof, or after expiration of the term at which the judgment was rendered. Had the motion been filed before or on the date of the general order of continuance by the court of pending causes, it would not have kept alive the motion for a new trial or rehearing. It follows from the statute or the circuit court rule, and constructions thereof, that the action of the trial court on the motion was without error. Circuit Court Rule 22, Code 1923, vol. 4, p. 901; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Mt. Vernon Woodbury Mills v. Judge, 200 Ala. 168, 75 So. 916; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Ex parte Schoel, 205 Ala. 248, 87 So. 801; Ex parte Margart, 207 Ala. 604, 93 So. 505; Southern Ry. Co. v. Griffith, 177 Ala. 364, 58 So. 425; Ex parte H. A. & B.R. Co., 105 Ala. 221, 17 So. 182. The statute provides that after the lapse of 30 days from the date on which the judgment or decree was rendered the court shall lose all power over it as completely as if the end of the term had been on that day; and, we add, unless the motion therefor was filed, called to the attention of, and passed by, the court before the adjournment of the term, and before the finality of the judgment or decree as provided by the statute after a lapse of 30 days from the date of its rendition. The provision of the statute for the lapse of 30 days as to such motions did not extend the term of the court as fixed by law, though the 30 days from rendition of a valid judgment or decree had not expired. See Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1; McCord v. Rumsey, 19 Ala.App. 62, 95 So. 268; Monroe County Growers' Ex. v. Harper, 20 Ala.App. 532, 103 So. 600.

The court has the inherent right to permit the jury to view the locus in quo--the land in this case that was alleged to have been damaged by the flowage--provided this was done upon proper protection against undue influence or parol testimony not given under the sanction of the oath of the court taken by the witnesses. The accredited representative of the court, the sheriff, was duly instructed by the court and was present, as were also the respective representatives of the parties litigant: Mr. Morris, for himself, and Mr. Shepard, together with one Tate, the chief engineer of the defendant company, representing the defendant. It is no valid objection that the court was not present. After the court had announced that "the jury would be permitted to go on the land involved in the suit, and examine and view same," counsel for the plaintiff interposed objection. The bill of exceptions then recites:

"The court overruled the said exception [objection], and stated further that the jury would be permitted to view the premises as before stated under instructions from the court to be given the jury and the sheriff. The plaintiff then and thereupon excepted to the ruling of the court in permitting the jury to view said premises as aforesaid. Thereupon the trial judge swore the sheriff of the county and put him in charge of the jury. Thereupon the court instructed the jury," etc.

In this ruling there was no error. In the court's instruction to the jury, among other things, it is said:

"I will direct you to communicate direct with the sheriff for any information that you want about seeing or viewing the land. If there is any information you need to enable you to get a view of the conditions, speak to the sheriff, and then he can take up with Mr. Morris and the representative of the other side so that you can get the view. The safer plan would be to let the communication be through the sheriff and the parties can communicate through the sheriff; remembering this, that you are there only to see and to express no opinion and engage in no discussion between any one, with Mr. Morris or the other side. You will not hear any remarks. The sheriff will show you the land. The court directs the sheriff to show these men the land and through the sheriff the parties will have the opportunity to call your attention to any condition that they want you to see, and not to discuss."

The conduct set up is contrary to the instructions of the court and was highly improper. Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Manning v. A., B. & A.R. Co., 206 Ala. 629, 91 So. 446; Ex parte A.F. & I. Co., 212 Ala. 1, 101 So. 642. However, the motion for new trial, not being timely, was stricken, and the matters therein presented cannot be considered in this court.

Refused charge A is fully and fairly covered by the oral charge of the court. The charge was predicated upon the fact whether the jury were reasonably satisfied of the right of the plaintiff to recover. Moreover, the jury found the issue of liability vel non for the defendant. The instruction only became pertinent as to the amount of damages in the event of a recovery. Furthermore, plaintiff had requested, and been given, charge A, declaring the rule of admeasurement of damages in the event of a recovery. The same observation may be made of the refusal of plaintiff's charge C.

Refused charges 1, 3, 4, and 5 are fully and fairly covered by given charges 2 and 3. Such is not the fact as to refused charge 7. Complainant counted on damage by way of pollution of the water. This element of damage was adverted to in charge 7 and not in the given charges indicated. Charge 7 should have been given. Jones v. T.C., I. & R. Co., 202 Ala. 381, 80 So. 463; McCary v. McLendon, 195 Ala. 497, 70 So 715. Cases of diversion and obstruction of water courses and the measure of damages are A.G.S.R. Co. v. Killian, 206 Ala. 541, 90 So. 906; N., C. & St. L.R. Co. v. Yarbrough, 194 Ala. 162, 69 So. 582. It is the right of the parties to invoke the action of the court to instruct the jury on the several issues duly presented and supported by the evidence. Lewis v. Martin, 210 Ala. 401, 417 (66), 98 So. 635. Count 1 claimed damages for pollution of the running waters--that they were made black and filthy and rendered useless for stock and domestic purposes and injurious to the land and harmful to the crops, etc., by reason of coal, coal dust, coal slack, slate, cinders, muck, and other débris. The given charges extend to the foreign matter or débris in said waters being deposited "onto the lands of the plaintiff." Charge 7 is broader in extending to the defendant's causing the waters so polluted to go upon or be placed upon the lands of plaintiff. The instruction of the court in the general charge on this point was to the extent of damage done to the land as such. It did not fully and fairly...