Southern Hardware & Supply Co. v. Standard Equipment Co.

• Citation: 165 Ala. 582,51 So. 789
• Parties: SOUTHERN HARDWARE & SUPPLY CO. v. STANDARD EQUIPMENT CO.
• Decision Date: 10 February 1910
• Court: Supreme Court of Alabama

51 So. 789

165 Ala. 582

SOUTHERN HARDWARE & SUPPLY CO. v. STANDARD EQUIPMENT CO.

Supreme Court of Alabama

February 10, 1910

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

Action by the Standard Equipment Company against the Southern Hardware & Supply Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

McIntosh & Rich, for appellant.

Brooks & Stoutz, for appellee.

MAYFIELD J.

This was an action by the appellee against the appellant for negligence in leaving a team of horses unattended in the streets of the city of Mobile, in violation of an ordinance of that city; alleging that in consequence of such negligence the team ran away and injured a mule, the property of plaintiff. The case has been before this court, on appeal once before. See report of case, 158 Ala. 596, 48 So. 357.

The bill of exceptions does not purport to set out all, or substantially all of the evidence; consequently there are assigned, and insisted upon, some errors which we cannot review on this appeal. This, for the all-sufficient reason as has been often declared by this court, that we cannot know, in this state of the record, whether the rulings of the court complained of were proper or not, such as the giving or the refusing of the general affirmative charge. Evansville Co. v. Slater, 101 Ala. 245, 15 So. 241; Wadsworth v. Williams, 101 Ala. 264, 13 So. 755; 5 Mayfield's Dig. p. 100, § 13.

It is insisted by appellee that, in view of this condition of the record, we cannot review any of the errors assigned, in that they all go to the rulings of the court upon the evidence, or to the giving or refusing of instructions to the jury. We cannot assent to this proposition in toto. There are some assignments which we must review, notwithstanding this condition of the record. This court, in the case of Bolton v. Cuthbert, 132 Ala. 406, 31 So. 359 (90 Am. St. Rep. 914), used this language: "While this court has gone very far in indulging the presumption to sustain the judgment of the lower court, where charges are involved, it has never extended it to a case where evidence was improperly admitted or excluded"--citing Torrey v. Burney, 113 Ala. 496, 21 So. 348; Postal Co. v. Hulsey, 115 Ala. 193, 22 So. 854; De Loach v. Robbins, 102 Ala. 288, 14 So. 777, 48 Am. St. Rep. 46; McDonald v. Wood, 118 Ala. 589, 24 So. 86. In the case of McDonald v. Wood, 118 Ala. 596, 24 So. 87, the majority of the court, speaking through Head, J., said: "The bill of exceptions does not purport to contain all the evidence. We cannot, therefore, review the court's findings of fact. But the judgment must be reversed by reason of the refusal of the court to permit the contestee to prove that A. O. Everett, or 'Lonny' Everett, as he was generally called, was not a legal voter"--the case being a contest of an election. Justice Coleman, in a dissenting opinion in the same case, which was concurred in by Brickell, C.J., reviewed the decisions of this court upon the question. There seems to be no difference between the majority opinion and the minority opinion, as to the law in such cases; the dissent seems to be based upon what the record showed in that case--this appearing from the language of the dissenting opinion. After stating and quoting the rules of law applicable to such cases, the dissenting opinion continues thus: "I am not sure that the opinion of the court conflicts with the foregoing rule," etc. "If the record in the case at bar showed that the contest was sustained by a majority of one, and that majority depended upon counting the vote of Everett for Cary, in whose interest the contest was prosecuted, then the court erred in refusing to receive evidence to show that he was not a legal voter, and the cause ought to be reversed. But if the record affirmatively shows that Cary was entitled to a clear majority, after rejecting the vote of Everett, the judgment ought to be affirmed. It is contrary to the established practice of this court, in such cases, to presume there might have been other evidence, not stated, to overcome the affirmative evidence which is stated, and upon such presumption, reverse the case. In my opinion, the record contains sufficient evidence to support the judgment, without counting the vote of Everett for contestant, and the reversal is not founded on correct principles of justice."

The first assignment of error is based solely upon an objection of appellant to the general mode of examining a witness. No objections were interposed to any specific question, nor was any specific ruling of the court invoked. The allowing or denying of leading questions, as a mode of examining witnesses, is largely discretionary with the trial court, and we do not see that this discretion was abused in the instance complained of.

The second and third assignments go to the trial court's allowing plaintiff's attorney to propound to his witness certain questions, it being claimed that they were leading questions. It is not necessary to decide whether or not these questions were leading; if they were so, the court could, in its discretion, allow such questions, and we see no abuse of this discretion, nor error in allowing them at the time and in the manner complained of.

The fourth assignment of error is based upon objections to several questions and motions to exclude several answers. The objection is not well taken to all the questions or to all the answers; and we cannot examine them separately when the objections and motions go to the whole. Neither are the questions or the answers separately set out, so as to admit of our reviewing them.

The fifth...