Southern Ry. Co. v. Hayes

• Decision Date: 01 May 1913
• Citation: 183 Ala. 465,62 So. 874
• Parties: SOUTHERN RY. CO. v. HAYES et al.
• Court: Alabama Supreme Court

62 So. 874

183 Ala. 465

SOUTHERN RY. CO. v. HAYES et al.

Supreme Court of Alabama

May 1, 1913

Rehearing Denied June 19, 1913

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Action by Fannie Hayes and others against the Southern Railway Company for trespass quare clausum fregit. From a judgment for plaintiffs, defendant appeals. Reversed and remanded for another trial.

The defendant moved to strike from the complaint the following averments: "And for cutting a tree thereon and for tearing down a fence and digging up the soil thereon." Also the following: "Plaintiff avers that said wrongs and injuries were committed by defendant in the yard of the home and dwelling of these plaintiffs, and within a few feet of the dwelling house, and over the protest and expostulations of Fannie Hayes, mother of the other plaintiffs, and by Ben Hayes, husband of Fannie Hayes and father of the other plaintiffs."

The following are the pleas referred to:

"(2) That at the time of the alleged trespass the lands in question were the property of this defendant."

"(4) Prescription of 20 years.

"(5) That, at the time of the commencement of this action and of the alleged trespass, the plaintiff Fannie Hayes was a married woman, her husband being one Ben Hayes, and they with their children, the infant plaintiff, were living on the premises involved in this case at the time mentioned that said Ben Hayes was and is the head of the household and proprietor of the premises, and he alone is the proper person to bring this action."

Wert & Lynne, of Decatur, for appellant.

O. Kyle and E.W. Godbey, both of Decatur, for appellees.

MAYFIELD J.

This was an action of trespass quare clausum fregit. The alleged trespass was that the defendant, appellant here, had cut down an embankment on the plaintiffs' land to enlarge or improve its right of way. The defense was, practically speaking, that the embankment cut down was the property of the defendant and constituted a part of its right of way, and that it was in the possession thereof, as a part of its right of way, at the time of and before the commission of the alleged trespass. So the real dispute was as to who was in the possession of the land on which the alleged trespass was committed.

There was no error in sustaining the demurrer to the plea in abatement of a former suit pending. The plea, at best, alleged the pendency of a suit in equity. This, as a rule, is not a good plea in abatement of an action in a court of law. The remedy in such cases is to apply to the court of equity to require the plaintiff to elect as to which action or suit he will first prosecute to judgment. It was at an early date said by the Supreme Court of Massachusetts (Colt v. Partridge, 7 Metc. [ Mass.] 570-576): "The pendency of a bill in equity has not usually been considered as a sufficient ground for sustaining a plea in abatement to an action at law. When both suits are commenced by the same party, it may furnish a proper occasion for a motion to require the party to elect which action he will first proceed in," etc. This case was followed by this court in Humphries v. Dawson, 38 Ala. 204, where it is said: "It appears, also, that the pendency of a bill in equity has not usually been considered sufficient ground for a plea in abatement of a suit at law. Colt v. Partridge, 7 Metc. (Mass.) 570, 576; Blanchard v. Stone, 16 Vt. 234; Hatch v. Spofford, 22 Conn. 495-596 ; Story's Conflict of Laws, § 610a (Bennett's Edition)."

The plea of misnomer, as to the name of the defendant corporation, "Southern Railway Company," and "the Southern Railway Company," is both too frivolous and too technical to be noticed.

There was no error in the trial court's declining to strike from the complaint certain allegations as to certain acts of trespass or wrongs mentioned therein. If proven, they were circumstances for the consideration of the jury in determining punitive damages, if such could be shown. The rule of law as to the measure of actual damages in such cases did not render such averments improper on the question of punitive damages.

The first and second counts of the complaint practically followed the forms prescribed in the Code for such actions and were sufficient. Section 5382, form 26, pp. 1199-1200, vol. 2, of the Code of 1907.

There was no error in sustaining demurrers to pleas 2 and 4. If there could be said to be any merit in either, the same matter was availing under the general issue, and, if error, it affirmatively appears that it was without injury. But we do not mean to say that there was error therein.

Plea 5 was clearly bad, if not frivolous. It was no defense to this action that one of the plaintiffs was a married woman and lived with her husband and children on the land at the time of the alleged trespass.

There was no error in allowing Fannie Hayes, one of the plaintiffs in this case, to testify as to the conversation had between her and the defendant's agents who are alleged to have authorized the commission of the trespass. This conversation occurred at the time of the trespass and was, in parts, plaintiff's protest against the act complained of and the defendant's or its agents' insistence that the defendant's had the right to do the act complained of.

Much of the evidence objected to by the defendant was a part of the res gestæae; and the other, if not, was admissible because between the parties or their authorized agents and about the subject-matter in dispute; and much of it was admissible for the jury to consider in determining the character and intent of the alleged trespass, and therefore bore upon the question of punitive damages. This was true although it was not admissible to show the extent or the amount of the actual damages.

The trial court did, however, err in excluding portions of the defendant's answers to the interrogatories propounded to it by the plaintiff because not responsive to the interrogatories. If this had been an ordinary deposition of a witness, the rule would be different, but we do not mean to indicate what our ruling would be, if such were the case presented. Interrogatories to the parties, and their answers, under this provision of the Code, as has been frequently held, are in the nature of bills of discovery in equity. The proceeding is frequently spoken of and referred to as a statutory bill of discovery. The answers to the interrogatories, in such cases, are treated as pleadings as well as evidence. The party propounding the interrogatories may insist upon and compel full and complete answers or have the statutory penalties enforced against his adversary for failure to answer. When the answer is thus obtained, the party demanding it may offer it in evidence or not, as he sees fit. The party answering cannot offer his own answer in evidence. If the party demanding the answer introduce it in evidence, he must introduce it as a whole; he cannot introduce a part only, or, having introduced the whole, have parts of the answer stricken because not responsive or because they are self-serving. This court, at an early date, held that: "The plaintiff, after obtaining the discovery, is not bound to read the answer, but it is optionary with him to read it or not. Unless he choose to read it, the other party cannot, so that in all cases he has the privilege of experimenting upon the chances of benefit which a discovery may afford. If he offers a portion of it, he makes the whole evidence and submits for the jury to determine what weight they will give it. Some confusion has been introduced into the decisions by not observing the distinction between an answer as evidence in the cause in equity in which it is made and when offered in the common-law court. In the first it is only evidence so far as it is responsive; but in the latter, the whole being evidence, it is for the jury to give to each portion whatever of weight they may think it deserves." Saltmarsh v. Bower, 22 Ala. 221, 230. This case overruled the case of Lake v. Gilchrist, 7 Ala. 955.

In the case of Sullivan Timber Co. v. Louisville & Nashville Railroad Co., 163 Ala. 125, 50 So. 941, the case were reviewed, and it was there said, referring to Saltmarsh v. Bower, 22 Ala. 221: "This state of the law, in this regard, remained without reflection upon its correctness until the decision in Bank v. Leland, 122 Ala. 289, 294, 25 So. 195, when for the first time, so far as we are advised, it was said in effect that answers merely irresponsive might be stricken."

Garrison v. Glass, 139 Ala. 512, 36 So. 725, followed Leland's Case, supra, but both of these cases were expressly overruled in Sullivan's Case. 163 Ala. 125, at pages 136, 137, 50 So. 941, at page 944. The reason for the rule and its enforcement was well stated by McClellan, J., in the last case referred to. It is there said: "If the interrogatee should be confined in his answers to only those interrogatories responsive to the interrogatories propounded to him, the power would be thereby given the interrogator to extract from the interrogatee only matters favorable to his action or defense and leave the interrogatee dumb to explain or avoid in his answers the favorable (to the interrogator) fact or circumstances so elicited. Such a result cannot be sanctioned, especially in view of the fact that answers to pertinent interrogatories, not otherwise improper or exempted from the requirement to be answered, may be compelled under rigorous penalties. The serious consequence indicated is not avoided by the fact that the party interrogated may testify on the trial; and this for the reason, among others, that the interrogatee may die or become otherwise disqualified to testify between the time he is required to and does answer and the time...