Town of Elba v. Bullard

• Decision Date: 13 June 1907
• Citation: 44 So. 412,152 Ala. 237
• Parties: TOWN OF ELBA v. BULLARD.
• Court: Alabama Supreme Court

44 So. 412

152 Ala. 237

TOWN OF ELBA v. BULLARD.

Supreme Court of Alabama

June 13, 1907

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action by Annie E. Bullard against the town of Elba. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, appellee here, sued the defendant, the appellant to recover damages for injury received by falling into or through a hole in a bridge which intersected and was a part of the sidewalk at the crossing of two streets in the said town. There were several counts in the complaint; but it is unnecessary to set them out, as no point is made on the pleading. The pleas are stated in the opinion of the court.

The thirty-fifth assignment of error is stated in the opinion of the court, and is the question to the witness Bullard. The thirty-ninth, fortieth, forty-first, and forty-second assignments of error relate to questions asked in reference to plaintiff's ability to work before her fall through the ditch, and the answer thereto that she could work before the fall, and had taken in sewing, and had looked after her household work, and questions with reference to her ability to work since the fall, and the answer thereto, that since her fall she could perform no work. The other objections to testimony are sufficiently set out in the opinion.

The evidence tended to show, and it was permitted to be introduced over defendant's objection, that by verbal agreement the wife released the husband from all liability on account of the doctor's attention, medicines, and nursing which was occasioned to her by the accident, and that, while he paid the bill, he did it as her agent, and in consideration of $200 he owed her and of a deed executed by her to him to 80 acres of land.

The following charges were requested by the defendant, and refused: "(1) The court charges the jury that the verbal agreement of Mrs. Bullard with her husband to convey him her land to reimburse him for the expenses he incurred in her sickness is not binding on her and should not be enforced. (2) Unless you believe from the evidence that Mrs. Bullard made a binding agreement with her husband to repay him for the expenses incurred by him in her sickness, and on her account, then you cannot find for the plaintiff for the money paid out by the husband for her."

There was judgment for plaintiff for $760 damages, and defendant appeals.

Riley &amp Wilkerson, for appellant.

J. F Sanders and M. Sollie, for appellee.

HARALSON J.

The record entry shows that "the defendant pleads, in short by consent, the general issue and contributory negligence." Issue was joined on these pleas.

Under this agreement, the trial proceeded, and the appellant admits, in brief of counsel, that it cannot insist on assignments of error from 1 to 34 inclusive, which related to pleas filed in the cause--other than the general issue--which related to the alleged contributory negligence of the plaintiff, numbered from 1 to 5, and those marked B and C. Plea A was on motion of plaintiff stricken, and no error is assigned therefor.

What remains are those assigned, numbered from 35 to 46, having reference to the admission and exclusion of evidence, and to charges refused.

The question to W. J. Bullard: "Is it not a fact that, about six months before this accident, Dr. Bradley advised you to carry your wife to Montgomery and have an operation performed on her for overitis?" was objected to by plaintiff for irrelevancy and immateriality, and the objection sustained. In this ruling there was no error.

The issue on the trial was for an injury occurring, as alleged from the negligence of defendant in January, 1904, and the real question was whether the injury complained of was produced by the fall plaintiff received when she fell through the bridge on the 12th of January, 1904. What Dr. Bradley may have advised, six months before the injury was received, as to witness' carrying his wife to Montgomery for an operation, was res inter...