Southern Ry. Co. v. Stonewall Ins. Co.

• Citation: 177 Ala. 327,58 So. 313
• Parties: SOUTHERN RY. CO. v. STONEWALL INS. CO.
• Decision Date: 09 April 1912
• Court: Supreme Court of Alabama

58 So. 313

177 Ala. 327

SOUTHERN RY. CO. v. STONEWALL INS. CO.

Supreme Court of Alabama

April 9, 1912

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the Stonewall Insurance Company against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Bestor Bestor & Young, of Mobile, for appellant.

Gregory L. & H. T. Smith and Joel Goldsby, all of Mobile, for appellee.

SOMERVILLE J.

Appellee sued appellant for the negligent burning in March, 1903, of a warehouse and a lot of baled cotton stored therein by sparks thrown from one of its locomotive engines operated on a coal chute track, owned and used by appellant, along Beauregard street in the city of Mobile, near said property. It is alleged that the warehouse was the property of the Magnolia Warehouse Company, and that the cotton was in separate parts the property of some 15 or 20 persons and firms, and that after defendant had become liable to said several owners these several owners assigned their claim and right of recovery to plaintiff. The trial was had on a plea of the general issue, and there was verdict and judgment for plaintiff for $10,686.

Four years after the suit was filed and service had on defendant several continuances having intervened and one trial had, defendant filed demurrers to the complaint attacking the right of plaintiff to maintain the suit in its own name as assignee of the claims described in the complaint. On motion of plaintiff these demurrers were very properly stricken from the file. On this, the second trial of the cause, defendant attempted to raise the same question by objections to evidence and by requesting written charges to the jury. It seems perfectly clear that in the absence of a demurrer to the complaint, or a plea in abatement of the suit as prosecuted, defendant cannot be permitted to raise such a question on the trial of the cause. Its plea of the general issue was no more than a denial of the cause of action, and did not put in issue the legal assignability of the choses in action. 1 Am. & Eng. Ency. Pl. & Prac. p. 11; 31 Cyc. p. 171. Certainly it did not raise the question of the constitutionality of section 877 of the Code of 1896, which expressly authorized the assignment of claims for damages against railroad companies for injury to property.

It is of course to be conceded that a right of action for tortious injury to property is not assignable in this state so as to pass the legal title and enable the assignee to sue in his own name, except in so far as section 877 of the Code of 1896 made it so in this class of cases. As already pointed out, we are not required by this appeal to pass upon the constitutionality of that statute; and, as held on the former appeal in this case, the defect, if any, was technical only, and could have been corrected by amendment in response to objection seasonably and properly interposed. Southern Ry. Co. v. Stonewall Ins. Co., 163 Ala. 161, 50 So. 940.

Defendant insists, however, that as the assignment referred to in the complaint was in writing and was not introduced in evidence during the trial, plaintiff was not entitled to recover at all as assignee, because there was no competent evidence of such ownership before the court. An inspection of the bill of exceptions, which purports to set out all the evidence, does not show that the document which evidenced the assignment relied on by plaintiff was ever formally introduced in evidence. Nevertheless, as the bill of exceptions does clearly show, this written assignment was present during the trial, was exhibited to several witnesses and fully identified, its execution was proven, and its character and contents fully exhibited to the jury--just as fully as if the writing itself were in evidence. If defendant objected to this mode of proof by secondary evidence, its objection should have been seasonably made to the trial court. By not doing so its right to object was very clearly waived.

As tending to trace the origin of the fire to one of defendant's locomotive engines through the emission of sparks while passing up the chute track near the Magnolia warehouse, the evidence pointing to no particular engine, plaintiff was allowed to prove the following facts against defendant's objection: (1) That all of defendant's engines while so ascending "exhausted" heavily, and threw out red-hot cinders in great quantities. (2) That on various occasions, prior to this particular fire, defendant's passing engines threw large quantities of hot cinders on the warehouse shed, and into the warehouse among the cotton bales; some of these occasions being shortly before, and some being several or an indefinite number of years before, the occurrence of the fire in question. (3) That on a number of occasions sparks from defendant's passing engines set fire to cotton in the warehouse; these occasions being scattered through an indefinite period of years before the fire in question, though some were but shortly before.

The general rule as to the admissibility of evidence of this nature is, we think, correctly stated in the Cyclopedia of Law and Procedure as follows: "Where the engine alleged to have caused the fire is not clearly or satisfactorily identified, evidence as to the general condition of other engines of defendant of the same general appearance and construction, and under similar conditions, at about the same time and place, in respect to throwing sparks or coals capable of setting fire,...