Volume 196 — Alabama Reports

<p>Appeal from Chilton Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Action by J. H. Middleton against the Alabama Power Company and another. From a judgment for defendants, plaintiffs appeals.</p> <p>The trespass alleged is the tearing down and removing from a certain five acres of land 12 houses alleged to belong to defendant. The complaint was afterwards amended by adding a count for conversion of certain lumber. .It appears that the Alabama Power Company by its contractors had leased this five acres of land from plaintiff for the purpose of quarrying rock for the building of its danis, and had placed thereon 15 or 16 houses for use in its quarrying operations, and when the lease expired, or rather when the quarrying had been finished, all of these houses but 3 were removed, together with the machinery and railroads. The contract provided, in substance, a lease of the five acres described, and the right to take rock and other-mineral substances for building purposes in and under said land, and also the right to build and operate one or more railroad tracks over and across the same, and to locate and operate equipment and machinery on said land, and to build structures, houses, and habitations for workmen, all for the quarrying operation, and transportation of said rock and other material, and the right to use the water of Blue Gut creek. It contained the following provisions also: The rights conveyed by this instrument, and all interest in the said land- shall revert to the grantors upon completion of the quarry operations on the said land by said grantee, its successors and assigns, at the expiration of said period of three years. The plaintiff also offered to show by parol testimony that it was agreed between Mr. Middleton and the Alabama Power Company that the houses which they were-to build on the land for the purposes of their operation were to be left on the land, and not to be removed from it. The court declined to permit this to be done.</p>

Heard before Hon. Charles W. Ferguson. Action by E. W. Favish against the Western Union Telegraph Company for damages for a failure to deliver a telegram in the words in which it was written and delivered to them. Judgment for plaintiff and defendant appeals. (Transferred from the Court of- Appeals under Acts 1911, p. 449.)

<p>Injury to Stock.</p> <p>1. Railroads; Injury to Stock; Burden of Proof. — Where the action was against a railroad for injury to a horse, and the only negligence charged was “.in running an engine into a horse” and there was no count relying on negligence as for frightening the animal and thereby causing the injury, the provisions of § 5476, Code 1907, were applicable, and the burden was not .on plaintiff to show negligence on the part of the agent of the road, as would have been the case had the injury been caused by merely frightening the animal.</p> <p>2. Same; Instructions. — In such an action an instruction putting the burden on plaintiff to reasonably satisfy the jury that defendant was operating the road, that it damaged the horse, and that, after plaintiff established his ownership and that the horse was damaged by the train, the burden was on defendant to show, and all the evidence would have to establish that defendant was not guilty of negligence in killing the horse, although possessing misleading tendencies when standing alone, was cured by instructions that the jury must believe, before plaintiff was entitled to recover, that defendant was responsible for the injury; that is, that its train ran into and injured the horse on account of the negligence of defendant, etc.</p> <p>3. Charge of Court; Misleading; Request. — Where parts of the oral charge possessed misleading tendencies, they should have been removed by requested explanatory charges.</p> <p>4. Same; Inapt. — Charges which are inapt to the evidence, are properly refused.</p> <p>5. Same; Covered by Those Given. — It is not error to refuse requested instructions fully or substantially covered by instructions given.</p>

<p>Injury to Person on Track.</p> <p>1. Railroads; Persons on Track; Protection. — A trespasser on a railroad track coming up the track to a crossing is not entitled to the protection or care required of a railroad as to persons using the crossing.</p> <p>2. Negligence; Wanton. — Wanton negligence rests upon the wrongdoers just apprehension of a probability of untoward consequences of his act.</p> <p>3. Railroads; Persons on Track; Wantonness. — Evidence that a trespasser was run down in the day time by a slowly moving train near a station where people were frequently on the track during the day does not justify the submission of wanton negligence.</p> <p>4. Same; Trespassers. — Where a person for his own purposes catches a freight train for a ride thereon, and on alighting therefrom walks on down the track to the station, he is a trespasser.</p> <p>5. Same; Burden of Proof. — The burden of proof of negligence or wantonness which results in killing a person is on planitiff throughout the case, if the person killed he a trespasser.</p>

<p>Appeal from Morgan Circuit, Court.</p> <p>Heard before Hon. D. W, SPEAKE.</p> <p>Action by W. E. Lynne against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 449.</p> <p>The plaintiff shipped 20 cases of dry goods from New York City to himself as consignee at Hartselle, Ala. The initial carrier was a steamship line which delivered the goods to the Southern Railway Company at Charleston, S. C., and it in turn delivered the shipment to defendant in a sealed car at Montgomery. From this point the car, with its seal unbroken was carried to Birmingham by the defendant, where the seal was broken, parts of the contents removed, other goods loaded to complete the carload, the car resealed, and thence carried by defendant to Hartselle. At this point the shipment was delivered to plaintiff as consignee. One Reader, checking agent of defendant at Birmingham, testified that when the car was opened at Birmingham he checked over this shipment, and found it short one case of dry goods, and found another case recoopered. This shortage and condition was noted by him on.the waybill issued by him for defendant when the shipment was checked and sent on its way to Hartselle. Nineteen cases, included the recoopered case, were delivered to plaintiff, and he found the recoopered case short a large part of its original contents. Plaintiff introduced in evidence the steamship’s bill of lading showing receipt and shipment of 20 cases of his goods. The defendant introduced in evidence the waybill issued by the Southern Railway, showing receipt and transhipment over its lines of these same 20 cases from Charleston to Birmingham. Defendant also introduced its own waybill from Birmingham to Hartselle, indorsed with the notation of shortage and condition as above stated, which wás verified by the testimony of the checking agent. The defendant objected to the introduction in evidence of the steamship bill of lading on the ground that it was not signed by the carrier, and was not shown to be genuine, and the objection was overruled. Defendant also objected to the testimony of plaintiff that he told defendant’s agent at Hartselle that “I would' have to bring suit for the 'goods, and he requested me to wait a few" days, maybe he would find it, and to give them a little more time;” and “he mentioned about, the goods-being short, that-they would come the next day-or two.’’; -These objections.-were overruled.' 'The trial judge refused to give the general affirmative charge for defendant, and also a written request to charge the jury thát plaintiff could not recover of this defendant for the lost case. The following charges were also refused to defendant:</p> <p>(1) The initial carrier is liable for the loss of goods when lost upon any road between the point of shipment and delivery, but connecting carriers are only liable for loss proved to have occurred while the goods were in possession of such connecting carrier.</p> <p>(2) If you believe from the evidence that the shipment sued on was an interstate shipment, and that the Clyde Steamship Company was' the initial carrier, of said shipment, and this defendant a connecting or delivering carrier of such shipment, and if you further believe a portion of said shipment was lost, I charge you the Clyde Steamship Company would be liable therefor, and not this defendant.</p>

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant; Assumption of Risk. — The defense of assumed risk cannot be availed of under the general issue, but must be made the subject matter of a special plea.</p> <p>2. Commerce; Interstate; Federal Liability Act. — Where the plaintiff was engaged as a railroad fireman in a crew making up interstate trains, and was injured during a temporary lull in the work in which he was engaged, he was engaged in interstate commerce when injured, and his case was properly brought under the Federal Employer’s Liability Act.</p> <p>3. Master and Servant; Injury to Servant; Jury Question. — Evidence that while plaintiff, a fireman, stood on an adjacent truck in order to work, another crew switched some cars with no one controlling them, and no warning signal into the cars on that track which ran over plaintiff and injured him, and that the switching foreman could have seen plantiff or his crew, was sufficient to warrant a submisson to the jury of the question of negligence.</p> <p>4. Same; Contributory Negligence. — Where there was nothing to indicate that the cars on the track , on which plaintiff was standing when injured, would be moved during the time he was there engaged, evidence that cars ran over plaintiff who was standing on a track adjacent to the engine on which he was working to straighten his flue auger between the wheels of his engine, was sufficient to warrant a submission to the jury of the question of contributory negligence.</p>

<p>Injury to Passenger.</p> <p>1. Carriers; Passenger-; Complaint. — Counts of the complaint averring the relationship of passenger and carrier between plaintiff and defendant, and charging that after plaintiff reached her destination, the train of defendant on which she was being carried did not stop a reasonable length of time for her to alight, and that while she was near one of the steps of the coach, one of the servants of defendant recklessly, wantonly and intentionally injured plaintiff by taking hold of her and pulling her off the train, while it was in motion, charged wanton negligence, and was not objectionable as charging both wantonness and simple negligence.</p> <p>2. Same; Replication; Demurrer. — Where defendant set up contributory negligence in that the train stopped a sufficient length of time at said station to allow passengers to alight or embark, the plaintiff failed to get off the train at her destination, although she knew it had been reached, butt after the train was put in motion she ran out of the train and jumped from the step, falling and receiving injuries; and another plea averring the same facts, and that though warned, plaintiff jumped from said train, a special replication to both pleas alleging that plaintiff's acts were done as a result of the invitation, direction or request of the servant of defendant, was not demurrable, or if demurrable, the sustaining of the demurrer thereto was not reversible error, the replication being good as to the first plea, and merely denying the special averments of the second plea, which denial the plaintiff had the benefit of under the general replication.</p> <p>3. Appeal and Error; Harmless, Error; Evidence. — Where it appears that the witness subsequently answered the question, and that the answer was received without objection, any error in refusing to allow such a question to the witness was rendered harmless.</p> <p>_ 4. Same. — A carrier cannot complain of the receipt of testimony that the suing passenger did not know, at the time of the injury, what she was talking about, as such testimony tended to support the contention of the carrier that such passenger was drunk.</p> <p>5. Carriers; Passengers; Alighting; Negligence, — Where plaintiff contended that when she alighted from the moving train she did so at the request and with the assistance of the porter on the train, the court could not, as a matter of law, declare such act contributory negligence, since whether one is guilty of negligence in voluntarily alighting from a moving train depends on the circumstances surrounding the parties at the time, the speed of • the train, etc.</p> <p>6. Same. — Where the passenger claimed that she was not notified that the train had reached her destination, and hence, had to alight while it was in motion, a charge asserting that a railroad company is not required to stop beyond a reasonable length of time to allow passengers to alight was inap-' plicable as omitting the question whether plaintiff knew that the train' had ■ reached her destination.</p>

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant; Jury Question. — Where the evidence tended to show that the alleged defect had existed for a sufficient time to warrant the inference, either that it was known or would have been discovered by due care, it was a question for the jury whether there was negligence attributable to defendant either in the existence of a defect in the condition of the ways, works, etc., or a failure to remedy the defect, the action being under subdivision 1,. § 3910, Code 1907.</p> <p>2. Same. — In such an action whether the method adopted by defendant’s roundhouse superintendent in bringing a car down the incline, which resulted in injury to plaintiff, was such a method as due care and reasonable precaution approves, was a question for the jury, under the evidence in this case, the action being under subdivision 2, § 3910, Code 1907.</p> <p>3. Same; Superintendents; Acts. — The evidence examined and held to warrant the conclusion that the railroad employee who directed that a car be brought down an incline in a certain manner was a superintendent within subdivision 2, § 3910, Code 1907.</p> <p>4. Appeal and Error; Harmless Error; Repetition. — Where a witness testified without objection that he had never brought a car down an incline with less than four or five men to let it down, the subsequent allowance of a question by plaintiff to the same witness, eliciting a repetition of that testimony, was harmless to defendant.</p> <p>■ 5. Damages; Permanent Injury; Jury Question. — Where plaintiff had suffered an injury that according to every reasonable probability would continue throughout the remainder of his life, the evidence tending to show that he was less perfect nine months after the injury, that he complained of pain; that two of his ribs had been broken, etc., it was for the jury to determine whether plaintiff had been permanently injured.</p> <p>6. Same. — Where a railroad is liable for the permanent injuries of, its servants, the damnifying consequences resulting from such injuries are of the element of recoverable damages.</p> <p>7. Same. — Even an entire absence of data from which to determine the amount of damages to a railroad employee from permanent injuries in service will not deprive him of his right to recover nominal damages.</p> <p>8. Same; Instruction- — A charge that if the jury were reasonably satisfied from the evidence that plaintiff was permanently injured as alleged, as a proximate consequence of the negligence complained of, they might award him such sum as would reasonably compensate him for such permanent injury, was proper, as advising the jury on the hypothesis that there was evidence warranting compensatory damages, for permanent injury; the plaintiff having been before the jury, and there being evidence tending to show a decrease in his earning capacity indicated in the reduction of wages received by him after his injury, although the mortality tables were not introduced.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. W. FERGUSON.</p> <p>Action by Mrs. Ethel Gray against the Birmingham Railway, Light & Power Company, for damages for injuries suffered while a passenger. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from Court of Appeals under Acts 1911, p. 449.</p>

Heard before Hon. J. C. B. Gwin. Action by Ben McCoy against the United States Cast Iron Pipe & Foundry Company, for damages for injuries while in its employment. Judgment for plaintiff, and defendant appeals.

<p>Injury to Minor Employee.</p> <p>1. Negligence; Proximate Cause. — Where there are two or more causes of an injury, the law will consider only the proximate cause, and not a remote cause.</p> <p>2. Same; Intervening Cause. — Where one cause merely created the condition, and after the condition had been created an intervening agency produced the injury, the first cause is not the proximate cause.</p> <p>3. Master and Servant; Injury to Servant; Proximate Cause. — Where defendant wrongfully employed plaintiff’s minor son, without her knowledge or consent, to work on a barge on the river, and the work was not essentially dangerous, and the boy appeared to be an adult, and one of the other employees on the barge pushed the boy into the river, as a joke, and the boy was drowned, the defendant’s wrong in employing the boy was not the proximate cause of the death, and defendant was not liable.</p> <p>4. Common Law; Applicability; Statutory Remedy. — While the action for the death of plaintiff’s minor son was brought under the homicide act (§ 2485, Code 1907), yet it is founded on defendant’s common law wrong in employing a minor at a hazardous work, without the consent of the parent, the common law principle governs, and the scope and policy of the prohibitive statute are without application.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. CROW.</p> <p>Action by R. A. McKinnon against the city of Birmingham and others, for damages alleged to have been sustained by a fall caused by a defective street. Judgment for defendant and plaintiff appeals.</p>

<p>Assault and Battery,</p> <p>1. Master and Servant; Tort of Servant; Liability. — The legal liability of an employer for the wrongful acts of its employees depends upon whether such employee was acting in the line and scope of his authority at the time the wrong was committed.</p> <p>2. Same; Evidence. — Where the action was for assault and battery committed by an employee of defendant, declarations of the employee made immediately preceding the alleged assault and going to show that the servant had orders to remove plaintiff from the premises, in connection with other facts and circumstances in evidence, were admissible as tending to disclose the authority committed to the employee.</p> <p>3. Same; Fellow Servant; Doctrine Applied. — The common law doctrine of assumption of risk of injury by one servant consequent upon the negligence of a fellow servant is without application to the case of an assault by a mine foreman upon a mine employee, the foreman having particular authority to eject him from the mine; the effect of the doctrine is limited to risks incident to the common employment.</p>

Heard before Hon, W. W. Haralson. Action by Mrs. Mary Fricks as administratrix against the Southern Railway Company, for damages for the death of her intestate. Judgment for plaintiff and defendant appeals.

Heard before Hon. A. H. Alston. Action by J. B. Palmer against Mrs. Maibelle Beatty. Judgment for plaintiff, and defendant appeals. It appears that plaintiff was a traveler along the street on a motorcycle, and that defendant was driving in an automobile, possibly on the wrong side of the street, and ran into plaintiff, inflicting the injuries alleged; some of the counts stating the cau'se in simple negligence, and some as for willful or wanton injuries.

. Heard before Hon. A. H. Alston. Action by Mrs. Mary M. Smith, as administratrix, against the Alabama Great Southern Railroad Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>Action by J. D. Tarrance against A. L. Chapman and another, for damages for setting fire to and burning his house. Judgment for defendants, and plaintiff appeals.</p> <p>Count 1 is as follows: Plaintiff claims of defendant $5,000 as damages, for that heretofore, to-wit, on or about 25th day of April, 1912, plaintiff owned and was occupying with his family, a residence at 817 Forty-Ninth street, in the city of Birmingham, Ala., and owned a large amount of furniture, goods, and effects in said residence, together with improvements and articles in and upon the curtilages thereof; that on said date said residence and said furniture, goods and effects, and articles were greatly damaged or destroyed by fire, and as a proximate consequence thereof were lost to plaintiff, or rendered of greatly less value to plaintiff, and plaintiff was greatly inconvenienced, vexed, etc. Plaintiff avers that defendant’s negligence caused such fire to be communicated to said residence, and to cause plaintiff’s said loss and damage.</p> <p>Count 6: Plaintiff adopts all of the words of the first count, to and including the claim for injuries and damages caused by said fire, and adds thereto the following: Defendants maintained a flue or chimney on certain premises in said city near to said residence of plaintiff in a manner which was dangerous to plaintiff’s said residence, and said flue or chimney was not a part of a wall, nor was it resting on the ground or on iron hangers or plates, and was maintained by defendant in violation of an ordinance of said city of Birmingham, to-wit, section'110, of the City Code of Birmingham, Ala., then in force and effect as follows: “If any chimney, flue, or heating apparatus on any premises shall be constructed or maintained in any manner which is dangerous to said premises, or any house, building or erection situated thereon, or on adjoining premises, or premises near by, the inspector shall at once notify the owner, agent or person in charge or control of said premises, on which the said chimney, flue or heating apparatus is situated. If such person so notified fails for a period of 48 hours after the service of such notice upon him to place such chimney, flue or heating apparatus in safe condition, he shall be liable to a fine as prescribed in this chapter; provided, that any chimney or flue not forming a part of a wall and not resting on the ground or on iron hangers or plates, is hereby declared to be unlawful, and is condemned and adjudged to be dangerous as set out in this section; but this provision cannot be construed to be an exclusive statement of every dangerous condition, and any and all other dangerous conditions shall be subject to this section. Provided, further, that all chimneys, flues, or heating apparatus on premises constructed prior to the 17th day of May, 1905, shall be considered safe if they form part of a wall or rest on the ground, or on iron hangers or plates, and that any person notified as set out above in reference to any such chimney, flue or heating apparatus, shall be deemed to have complied with such notice, if any such chimney, flue or heating apparatus is made to conform with the requirements contained in this proviso; provided, further, that all chimneys, flues and heating apparatuses constructed since the 17th day of May, 1905, shall conform to all the terms and conditions of this chapter.” And as a proximate consequence of said violation of said ordinance by defendant, the building on which said flue or chimney was caught fire and set fire to plaintiff’s said residence, and proximately caused plaintiff to suffer the injuries and damages.</p> <p>Count 2 set out section 29 as to the thickness of the wall of chimneys and the height above the roof, and the size of the flues, section 70, having reference to party walls, and section 71 having reference to smoke flues being lined with cast iron or fireproof terra cotta pipe from the bottom of the flue to the top of the chimney. Count 7 alleges that defendant negligently maintained a certain flue or chimney on certain premises in said city near said residence of plaintiff in a manner which was dangerous to plaintiff’s residence, and that said flue or chimney was not a part of a wall, nor was it resting on the ground or on iron hangers or plates, and was maintained by .defendant in violation of an ordinance of the city of Birmingham, to-wit, section 110 of the City Code of Birmingham, then and there in force and effect, which ordinance is set out in count 6, and is here referred to and made a part hereof.</p>

Heard before Hon. R. C. Brickell. Action by R. N. Lovell against the Louisville & Nashville Railroad Company for personal injuries, and for injuries to his team, resulting from á collision at a crossing. Judgment for plaintiff and defendant appeals. (Transferred from Court of Appeals under the act creating said Court.)

Heard before Hon. C. B. Smith. Action by W. P. Smith against J. B. Jeffcoat for trespass quare clasum fregit. Judgment for defendant and plaintiff appeals.

Heard before Hon. Saffold Berney. Action by Robert J. Kearns against the Mobile Light & Rail- . road Company for damages for injuries to an automobile. Judg-. ment for defendant on the pleadings, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>Appeal from Fayette Circuit Court.</p> <p>Heard before Hon. Bernard Harwood.</p> <p>George W. Poe, Jr., sued the Southern Bailway Company, for damages for the destruction of property by fire. Judgment for defendant and plaintiff appeals.</p>

City Court. . Heard before Hon. John H. Miller. Action by L.'S. Stephens against the Birmingham Southern Railroad Company, for damages for injury. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts of April 18, 1911, p. 449.- As. amended, the complaint is as follows: Count 1.

Heard before Hon. E. C. Crow. Action by' John McAlister and wife against the BrooksidePratt Mining Company, for damages for overflow, etc. From a judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. Charge 8 refused to defendant is as follows: I charge you that you cannot award plaintiff any damages for mental anxiety caused by the illness of their children.

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffo'ld Berney.</p> <p>Action by Paul B. Ray against Thomas Brannan for damages for personal injuries suffered in an automobile accident. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911.</p> <p>The complaint charges: First that the servant of defendant so negligently drove defendant’s car as to collide with plaintiff’s car at the intersection of Warren and Government streets in the city of Mobile; and, second, that said collision was due to the failure of said servant to keep reasonably near the right hand curb of Government street as required by city ordinances. The general issue was interposed, and several pleas of contributory negligence, setting up substantially that plaintiff negligently approached the street intersection at such a high rate of speed that after he saw, or should have seen, defendant’s approaching car, he was unable to stop his own car; and in connection with the same allegation that a city ordinance further provides that police, five departments, patrol, ambulance, and United States mail vehicles shall have the right of way through any street and any procession, and that, subject to the foregoing exceptions, and everything being equal, all vehicles going in an easterly and westerly direction shall have the right of way over all vehicles going in a northerly and southerly direction, and that plaintiff’s car was not one of the excepted vehicles, and that plaintiff negligently attempted to cross said street intersection in his car at a speed greater than 15 miles an hour, in violation of the city ordinance forbidding such excessive speed; and that plaintiff negligently attempted to turn westward around such corner of Government and Warren streets at a speed greater than 10 miles an hour, in violation of the city ordinance prohibiting such excessive speed. The pleading and the evidence shows that Warren street runs north and south, and Govérnment street runs east and west, and that plaintiff was driving along Warren and defendant along Government street. The evidence is in conflict as to the speed of the colliding cars, and as to their relative position with respect to the right-hand street curbing, and to each, other, both before and at the time of the collision. There were tendencies of the evidence from which the jury might have found that plaintiff’s car was traveling northward near the right-hand curb at 7 or 8 miles an hour, and that defendant’s car was proceeding westward south of the center line of the street at a speed up to 18 miles an hour.</p> <p>The chief question presented by the assignments of error is upon the following charge given to the jury at the request of defendant: “Under the ordinances of the city of Mobile, Mr. Brannan’s car had the right of way on Government street over Mr. Ray’s car, and it was the duty of Mr. Ray, when approaching Government street over Warren street, to have his car under such control as to be able to avoid a collision with vehicles using Government street in an east and west direction, and if you are reasonably satisfied from the evidence that Mr. Ray did not so approach Government street, and that the accident complained of proximately resulted from his failure to do so, then your verdict should be for defendant.”</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. CROW.</p> <p>Action by May Franklin against the Southern Railroad Company for damages for injuries suffered while a passenger. Judgment for defendant and plaintiff appeals.</p>

Heard before Hon. W. W. HARALSON. ' Action by C. G. Kershaw against J. H. McKown for damages for killing a dog. From a judgment for defendant, plaintiff appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.

Heard before Hon. C. W. Ferguson. Action by L. D. Hawkins against the city of Birmingham, and one of its police officers, for damages for injuries inflicted upon plaintiff’s minor son, in an automobile or motorcycle collision. Judgment for plaintiff, and defendant city appeals. (Transferred from Court of Appeals under act creating said court.)

<p>Appeal from Marengo Law and Equity Court.</p> <p>Heard before Hon. B. F. Gilder.</p> <p>Action by Ernest M. Bailey against the Southern Railway Company for damages to an automobile. Judgment for defendant, and plaintiff appeals.</p> <p>Plaintiff’s automobile was being driven along the main street of the town of Faunsdale 7 p. m. November 29th, and crossed defendant’s track near its depot at a speed of not less than two miles an hour, without stopping in front of the track. Defendant’s train on the main line, running three or four miles an hour, collided with the automobile. About 10 box cars stood on defendant’s side track between the automobile and the main track, and obstructed the chauffeur’s view until after he passed over the siding, which was eight feet from the main track. Plaintiff and the chauffeur both testified that they did not hear either bell or whistle from the engine, and did not see or know of the approach of the train until it struck them. The trainmen did not see the automobile until the engine got on the crossing. Several hundred people or vehicles pass over the crossing daily. The complaint charges both simple and wanton negligence, and the defendant pleaded the general issue and contributory negligence.</p>

<p>Frightening AnimaL</p> <p>1. Trial; Directing Verdict. — If, when plaintiff has introduced all his evidence, it does not tend to prove his cause of action, the court may refuse to hear evidence from defendant, but it is only in the absence of all evidence against defendant that the court should direct a verdict; if there be any evidence tending to establish plaintiff’s case, the court should not withdraw the cause from the jury.</p> <p>2. Railroads; Frightening Animals, — Where the negligent act of a railroad’s servant in operating its train was a continuing contributing cause to frightening plaintiff’s mule, resulting in injury to plaintiff, he has a cause of action against the railroad.</p> <p>3. Appeal and Error; Specification of Evidence. — Where the distance indicated by witness was such as “from here to the jury box” or “from here to the spittoon” they should have been given more specifically in the bill of exceptions, since they might involve a contradiction; the bill reciting that it contained all the evidence.</p> <p>4. Railroads; Frightening Animals. — The general rule is that for an injury resulting from the frightening of a horse in the proper operation of a train, or other instrumentalities of a railway, no damages are recoverable, but where an engine is managed in such a reckless and negligent manner as to frighten a horse and cause it to run away, the company is liable for the consequences; such as where the engineer suddenly discharges a jet of steam near a passing team, or allows the steam to escape at a crossing or near a highway, making a great noise, when teams are approaching, especially when it is unnecessry.</p> <p>5. Same; Jury Question. — Questions whether the road’s agent in charge of the engine which is alleged to have frightened plaintiff’s mule, saw plaintiff and the frightened mule which he was trying to drive or control, was for the jury under the evidence.</p> <p>6. Same. — Whether defendant’s agent operating the engine, if he became aware of plaintiff’s presence driving the frightened mule, under the circumstances of the place, and of the situation, exercised due care not to frighten, or not to increase the fright of the mule, was a question for the jury under the evidence.</p> <p>7. "Witnesses; Competency; Knowledge. — The testimony of a physician that he believed he treated plaintiff for hernia last spring, and believed he remembered plaintiff telling him that it was bothering him some, was properly received.</p> <p>8. Evidence; Competency. — Where plaintiff had testified that steam was coming from the cylinder cock, and the witness had explained how the steam escaped through such cylinder cock, and there was evidence from which the jury might infer that the engineer knew of plaintiff’s nearness and peril, the witness was properly allowed to answer the hypothetical question if an engine was running along a railroad parallel with the highway, and on meeting a party coming in the opposite direction the cylinder cocks were open and the steam escaping out on the road, how long would it take the engineer to cut off steam until the engine had passed.</p> <p>9. Railnoads; Frightening Animals; Instructions. — Although a railroad has the right to operate its trains along its tracks parallel with a highway in the usual manner, and with the usual and customary noises, without liability to a driver of an animal frightened thereby, yet if the peril of the driver was apparent to the agent of the road in charge of the engine, such agent owed the driver the duty to shut off unnecessary escaping steam at the cylinder cocks, to allay the fright of the animal, when it could have been instantaneously done without interfering with the operation of the train.</p>

Heard before Hon. R. C. Brickell. N. H. Limblad sued R. L. Ward in trover for the conversion of a cow, and there was judgment for plaintiff from which defendant appeals. (Transferred from Court of Appeals under act creating said court.)

Heard before Hon. John H. Miller. Action by J. M. Sprague against the Birmingham Railway, Light & PowerCompany, for damages for injury to his automobile. Judgment for plaintiff and defendant appeals. (Transferred from Court of Appeals under act creating said court.)

Heard before Hon. James E. Horton, Jr. Bill by A. W. Cannon and others, against W. G. Martin, for the sale of real estate and the distribution of proceeds. Decree for complainants overruling demurrer to the bill and respondent appeals.

Heard before Hon. Thomas W. Coleman, Jr. Bill by C. M. Davis and another, against F. M. House and others, to enforce a vendor’s lien. From a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. M. R. CHAPMAN. A. E. Walker, as State Superintendent of Banks, assumed control of the business of the Bank of Geneva, and made certain settlements with the debtors of the bank, and was proceeding to enforce his administration in the chancery court, whereupon the Mutual Alliance Trust Company filed a petition in said court seeking to enforce a lien on property received by Walker as Superintendent, in settlement of an indebtedness to the bank claiming to hold…

Heard before Hon. JAMES E. HORTON, Jr. Bill by J. B. Altom against B. B. Moore, and others, to declare a deed fraudulent and void as to creditors, and to subject the land therein to sale for the satisfaction of the grantor’s debt. From a decree for complainant respondents appeal.

<p>Appeal from Autauga Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by E. E. Yarbrough against T. H. Stewart and others, to enjoin the collection of a judgment for trespass upon land. From a degree sustaining demurrers to the bill, complainants appeal. See in this connection Yarbrough v. Stewart, 191 Ala. 454, 67 South. 989.</p>

Heard before Hon. James E. Horton, Jr. Bill by J. J. Cudd against Harry Mitchell and others, to foreclose certain mortgages on real estate, to reform the description in said mortgages, and to cancel a certain deed. Decree overruling demurrer to the bill and respondents appeal.

Heard before Hon. J. C. B. Gwin. Bill by W. H. Dabbs against Elizabeth Dabbs for divorce, with cross-bill by respondent, seeking permanent alimony in case the divorce should be granted. Decree for complainant and respondent appeals.

Heard before Hon. James E. Horton, Jr. Bill by J. R. Farrell against Lucy Farrell, for divorce, with cross-bill seeking alimony. From the decree granting alimony and attorney’s fees, complainant appeals.

Heard before Hon. JOHN H. DlSQUE. Bill by the Interstate Mortgage & Bond Company against Mary Annie Todd and others, to require respondents to elect whether they would affirm or disaffirm a sale made under power in the foreclosure of a mortgage, and in the event of a disaffirmance that the mortgage be foreclosed by appropriate decree, with cross bill by Mary Annie Todd. From a degree for complainant Mary Annie Todd appeals.

Heard before Hon. A. H. Benners. Bill by L. A. Chambless against T. A. Jones to enjoin a trespass and to define a boundary line. From a decree dismissing her bill complainant appeals.

<p>Separate Maintenance.</p> <p>Husband and Wife; Separate Maintenance; Evidence. — The evidence examined and held sufficient to warrant a decree for a reasonable allowance to the wife for a separate maintenance.</p>

Heard before Hon. James E. Horton, Jr. Bill by J. C. Butler and another, individually and as trustee,, against H. A. Webb and others, for an accounting, settlement, and contribution. From a decree overruling demurrers to the amended bill, defendants appeals.

Heard before Hon. A. H. Benners. Bill by Mary L. Waddail against Robert Vassar and others to enforce a resulting trust in land. From a decree for respondent complainants appeal.

Heard before Hon. J. J. Curtis. Bill by G. W. Gravlee and others against the Eagle Coal Company, to enforce a lien for unpaid rent, after the annulment and cancellation of the lease. Decree for complainants and respondent appeals.

Heard before Hon. A. H. Benners. Bill by S. A. Woolbert against Andrew J. Reilly and others for an accounting and to declare interest in partnership lands. From a decree for plaintiff, defendant named appeals.

Heard before Hon. Thomas H. Smith. Bill to foreclose an equitable mortgage by John M. Clancy .against Henry C. Hamilton and another. Decree for plaintiff, and defendant Hamilton appeals. The bill in this case was originally filed by John M. Clancy against the appellant, Henry C. Hamilton, and one Alan Chester. The bill was subsequently amended by alleging that said Chester was a non-resident of the state, and by striking him as a party respondent.

Heard before Hon. W. R. Chapman. Bill by the Interstate Land & Investment Company against Sallie H. Logan to enjoin the foreclosure of a mortgage; by amendment to the bill Mrs. G. H. Holloway was also made a party respondent. From a judgment for respondents on demurrer, complainants appeal.

Heard before Hon. H. A. Sharpe. Bill by D. H. Markstein against George B. Ward and other commissioners in the city of Birmingham, to enjoin the enforcement of the liquor inspection ordinance. From a decree for complainant, respondents appeal. The facts sufficiently appear.

Heard before Hon. W. R. Chapman. Bill by Mary A. Griffin against S. C. Dawsey to cancel a mortgage as a cloud upon her title' because given to secure a debt of the husband. From a decree dismissing the bill complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Eliza B. Guin against G. L. Guin, her husband, and others. From a decree for respondents, complainant appeals. The bill alleges that Mrs. Eliza Guin gave $85 to her husband with instructions to use it, as previously proposed by him, in the purchase of a tract of land, the deed to be made to Mrs. Guin.

Heard before Hon. O. S. LEWIS. Bill by G. A. O’Connell against Alice O’Connell and others to quiet title to land. From a decree rendered, complainant appeals, with cross-appeal by one of respondents. The will of Lucy O’Connell as to the items mentioned is as follows : Item 2.

Heard before Hon. C. B. Smith. Bill by Mrs. Samuella J. Miller against Mrs. Ella M. Graham, to declare a mortgage on real estate usurious, to have an accounting, and to enforce the mortgagor’s equity of redemption. From a decree sustaining demurrer to the bill complainant appeals.

Heard before Hon. A. H. Benners. Bill by the Aetna Insurance Company against C. A. Hann and others to enjoin several actions at law. From a decree sustaining demurrers to the bill complainants appeal.

Heard before Hon. W. W. Whiteside. Bill by J. R. Stewart and another against J. C. McKenzie to specifically perform a contract and satisfy a mortgage record. From a decree overruling defendant’s demurrer to the bill, he appeals. The bill shows that respondent, McKenzie, held a mortgage on certain lands of complainant Stewart, to secure Stewart’s note upon which was due a balance of $1,500.

Heard before Hon. James E. Horton, Jr. Bill by Bluitt Pf Wallace against the F. W. Cook Brewing-Company, and others, to enjoin the enforcement of a judgment, at law. From a decree for respondents complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Robert L. Ward against Martha L. Betts and others, for a sale of land for partition. Decree for complainants and respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by R. W. Johnson and another against Pinckard & Lay, and others, to cancel a mortgage and deed because of mental incapacity of the grantors. From a decree for respondents complainant appeals.

Heard before Hon. A. H. Benners. Creditors’ bill by John B. Mullen against the Palos Coal & Coke Company and others. From the decree holding that the conveyance was an attempt to prefer one creditor, and was a general assignment under the statute, complainant appeals.

Heard before Hon. Saffold Berney. Bill of the Boston Shoe Shop, a corporation, against the McBroom Shoe Shop, a corporation, to enjoin the use of trade devices. From a decree sustaining a demurrer and refusing the injunction, complainant appeals.

Heard before Hon. W. R. Chapman. Bill by Mamie Lambert against Ora Smith and others to remove an estate from the probate to the chancery court, and an accounting. From a decree for complainants respondents appeal.

<p>Appeal from Colbert Chancery Court.</p> <p>Heard before Hon. James E. Horton, Jr.</p> <p>Bill by the Corinth Bank & Trust Company against the Sheffield National Bank and others, to declare a mortgage a general assignment for the benefit of all creditors. From a decree overruling separate demurrers of respondents they appeal.</p>

Heard before Hon. Charles W. Ferguson. Action by Mamie Cohill against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. C. P. McIntyre.</p> <p>Action by the Central of Georgia Railway Company against B. F. Emerson, to recover an undercharge in freight rate. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from Court of Appeals under act creating that court.</p>

Heard before Hon. Marion H. Sims. Assumpsit by the Commercial Finance Company against Cooper Bros., a partnership. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. The action was for goods, wares, and merchandise sold under a contract in writing for the sale of certain chinaware.

Heard before Hon. Kobert C. Brickell. Suit by the county of Cullman against J. J. Searcy and others, sureties upon his general official bond, as county -treasurer. Judgment for plaintiff and defendáns appeal.

Heard before Hon. W. W. Pearson. Action by N. J. Bell and others begun by attachment against the Seals Piano & Organ Company, to enforce a landlord’s lien for rent not due. Judgment for plaintiffs and defendant appeal.

<p>Appeal from Madison Law and Equity Court.</p> <p>Heard before Hon. James H. Ballentine.</p> <p>Action by Ed Hartsell against Curry Turner for breach of contract, and for work and labor. Judgment for defendant and plaintiff appeals.</p> <p>Transferred from the Court of Appeals under the act creating said court.</p>

<p>Assumpsit.</p> <p>1. Judgment; Default; Motion to Set Aside. — A motion, after suffering default judgment, for a new trial on the ground that the finding was contrary to the evidence, and that defendant had a meritorious defense but was prevented by surprise, accident or mistake, from making it before the court’s final finding, but which fails to state any fact in support of the prayer for relief, was demurrable.</p> <p>2. Same. — In such a case, where it did not appear that the petitioner offered to amend the motion, the court properly dismissed it.</p> <p>3. Same; Setting Aside Denial. — A motion to set aside an order denying .a rehearing after a default judgment, not accompanied by an offer to amend petition by sworn statement of the facts showing a good and meritorious defense to the action, was properly denied.</p>

Heard before Hon. Gaston Gunter. Action by Nancy E. Goodman against the Metropolitan Life Insurance Company to recover upon the policy issued on the life of Louis M. Goodman under which she was the beneficiary. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 449.

Heard before Hon. Norvelle R. Leigh, Special Judge. Assumpsit by Albert P. Bush against Julia F. Russell to recover broker’s commissions on the sale of real estate. • Judgment for plaintiff and defendant appeals.

Heard before Hon. C. P. McIntyre. Assumpsit by B. K. Bloch doing business as the Empire Distilling Company, against Lee Holmes. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under act creating that court.

• Heard before Hon. A. E. Gamble. Action by Nettie B. Ward against Sovereign Camp of the Woodmen of the World. • Judgment for the plaintiff, and defendant appeals. The defenses were the general issue, the suicide clause, and the by-laws of the order relative thereto. The matter relative to the jurors sufficiently appears.

Heard before Hon. S. L. Brewer. Assumpsit by T. H. Watkins against C. F. Porter and others. Judgment for plaintiff and defendants appeal. Transferred from Court of Appeals under act creating that court.

Heard before Hon. Samuel B. Browne. Assumpsit by George M. Rosengrant against Max Lowy and another. From a judgment for plaintiff, defendants appeal. The first, second, and third counts sufficiently appear.

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>J. C. Walden doing business as the J. C. Walden Auto Company, sought to enforce a lien for repairs upon the automobile of one John P. Harrell, whereupon Travis Mixon interposed claim thereto under a chattel mortgage covering the automobile, and had judgment from which plaintiff appeals.</p> <p>Transferred from Court of Appeals.</p>

Heard before Hon. Saffold Berney. Action by John Skally against the People’s Shoe Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 450. The declaration was upon breach of contract of employment. The pleas were: The general issue.

<p>Assumpsit.</p> <p>1. Time; Compensation. — Under § 11, Code 1907, in calculating the time as fixed by a statute within which an act may be done, the first day is excluded, and the last day included.</p> <p>2. Same; Within. — The use of the word “within” as a limit of time or degree or space, embraces the last day or degree, or entire distance fixed, or covered by the limit.</p> <p>3. Bill of Exceptions; Presentation; Time. — Where bill of exceptions was presented 92 days after judgment entered, it was not presented within the time required by § 3019, Code 1907, and on motion must be stricken.</p>

Heard before Hon. A. H. Alston. A. J. Crosthwait sued W. C. Wallace to recover the purchase price of a bale of cotton, and had judgment from which defendant appeals. Transferred from Court of Appeals.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Attachment by L. P. Dooley against T. T. Temple to enforce a landlord’s lien for rent. The court directed a verdict for plaintiff on trial of defendant’s plea in abatement, and defendant appeals.</p> <p>Transferred from Court of Appeals.</p>

<p>Assumpsit.</p> <p>Continuance; Discretion; Statute. — Where an action was instituted by attachment July 7, and complaint was filed Nov. 13, thereafter, three days before the first day of the term, or six days before the return of the attachment, or the time when the complaint was required to be filed, while defendant could have made demand on plaintiff for bill of particulars at any time after the suing out of the attachment, the refusal of the court to grant defendant’s motion for a continuance made Nov. 18, after having demanded bill of particulars, under § 5326, Code 1907, on Nov. 14, was not an abuse of discretion.</p>

Heard before Hon. Edward J. Gilder. Assumpsit by the Standard Oil Company against D. J. Meador & Son. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. The complaint was on the common counts. Plea A set up certain payments and credits as an offset against plaintiff’s demand.

Heard before Hon. John H. Miller. Action by William H. Daniel against R. J. Hughes in assumpsit. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. E. Gamble. Assumpsit by the Walsh Manufacturing Company against the W. T. Smith Lumber Company. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. GwiN.</p> <p>Assumpsit by the Atlanta Brewing & Ice Company against John Colley. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals.</p>

<p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Assumpsit by H. F. Gilreath against Doran & Company. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from Court of Appeals.</p>

Heard before Hon. W. W. Pearson. Assumpsit by P. D. Tebault against the Cole Motor Car Company. Judgment for plaintiff, and defendant appeals. The suit was to recover commissions alleged to be due plaintiff on sales of automobiles made by plaintiff as agent of defendant.

Heard before Hon. Saffold Berney. Assumpsit by George F. Owen against the Capital Security Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John T. Lackland. P. L. McLeod had judgment against one N. J. Bradford, and had execution thereon with levy upon certain property. M. S. Garrick interposed claim to same, and on the trial of the right of property claimant prevailed, and plaintiff in execution appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6.

Heard before Hon. E. C. CROW. Assumpsit by William Moon against A. M. Brown. Judgment for plaintiff, and defendant appeals. The first assignment of error is that the court erred in not allowing the witness Martin to answer the question of defendant: “Do you know the general reputation of plaintiff in the community in which he lives ?”

Action by the First National Bank of Gadsden against Hugh C. Henderson for breach of contract. Judgment for defendant, and plaintiff appeals.

Heard before Hon. H. A. Pearce. Suit by the Burroughs & Taylor Company against J. T. Beasley and another for the breach of a forthcoming bond in attachment. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6.

Heard before Hon. H. A. Pearce. Assumpsit by P. E. Greer against the Malone-Beall Company. There was judgment for plaintiff, which on motion of defendant was set aside and new trial ordered, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

Heard before Hon. Gaston Gunter. Assumpsit by Thomas L. Hackett against Will Cash. From a judgment for defendant on his plea of recoupment, plaintiff appeals. Plaintiff sought to recover on 14 promissory notes.

Heard before Hon. Samuel B. Browne. Assumpsit by Robert D. Bell against A. MacKay & Co., with attachment in aid thereof. The matter in controversy was submitted to arbitrators, and plaintiff appeals from their return.

Heard before Hon. D. W. Speake. Assumpsit by Jones & Weeden against W. M. Keller. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The facts and pleading sufficiently appear. The following charges were refused to defendant: (8) Unless you are reasonably satisfied from the evidence that plaintiffs procured from Adkins a bona fide offer of $6,000 for defendant’s land, plaintiff cannot recover.

Apeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by S. L. Christie against the Southern Dredging Company. Judgment for plaintiff and from a judgment overruling motion for new trial defendant appeals. Transferred from the Court of Appeals.

<p>Appeal from Madison Circuit Court.</p> <p>Heard before Hon. R. C. Brickell.</p> <p>Action by the Studebaker Corporation of America against D. C. Finney. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals.</p>

<p>Assumpsit.</p> <p>1. Insurance; Fire; Limitation; Waiver. — Where, at the time of the issuance of the fire insurance policy, plaintiff fully advised defendant’s agent that there was a mortgage on the property, and the property was sold under foreclosure proceedings under the mortgage before the loss, the insurance company could not refuse payment under a provision in the policy that .it should be void if the interest of the insured be other than unconditional and’ sole ownership of the property.</p> <p>2. Same. — A provision in a policy that it should be void if foreclosure proceedings be commenced or notice of the foreclosure sale of the property be given with knowledge of the insured, was waived under a provision of the policy authorizing the insurance company to cancel the policy by giving five days’ notice, where the insurance company failed to cancel the policy, it having knowledge that the property was advertised for sale for three weeks.</p> <p>3. Agency; Authority. — An insurance company is bound by the ostensible or apparent authority of its agents; the test being his actual power as held out to the world, in the absence of knowledge of limitations thereon on the part of persons dealing with such agent.</p> <p>4. Same; Forfeiture; Waiver. — By denying liability on one ground of forfeiture alone, an insurance company waives all other grounds of forfeitures or breaches of the conditions of the policy.</p>

Heard before Hon. W. G. McCorvey. Petition by the State of Alabama, on the relation of J. E. Brown, for mandamus to I. B. Slaughter, Judge of Probate, to require said judge to file the committee selected by petitioner, together with the committee’s acceptance, in accordance with the Corrupt Practice Act. From a decree denying relief, petitioner appeals.

Original proceedings in Supreme Court. Be it ordered by the court that one James A. Mitchell, Esq., of Birmingham, Ala., be and is hereby cited to appear before this court at Montgomery, Ala., on Monday, the 27th day of March, 1916, and then and there show cause why his name should not be purged from the roll of practicing attorneys in this court, and why he should not be adjudged guilty of contempt of this court (one. or both), because of the writing, publishing, or…

Original application in the Supreme Court. ■ Petition by Lucy Farrell to compel the Chancellor of the Northeastern Chancery Division to annul an order dismissing an application for alimony and suit money, pending an appeal in the divorce proceedings.

Heard before Hon. C. B. Smith. Mandamus by Robert M. Hernandez against the Birmingham Waterworks Company to compel it to install a service pipe between its main and the property line of the relator. From a decree granting the writ, respondent appeals.

Heard before Hon. C. B. Smith. Action by the State of Alabama against the Doster-Northington Drug Company, relative to certain escaped taxes. From a decree sustaining demurrer to the complaint filed, the State appeals.

Heard before Hon. W. W. Pearson. Mandamus by the State of Alabama on the relation of S. P. Shoemaker against R. P. Davison as County Registrar, to compel registration of a voter. From an order sustaining demurrer to petition petitioner appeals.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Prohibition by the State, on the relation of J. H. Newton, against James L. Herring, as Judge of Probate, seeking to prohibit such judge of probate from placing upon the list of qualified voters of St. Clair county, the names of certain persons who were registered after the 5th of January. From a judgment denying the writ petitioner appeals.

Heard before Hon. W. G.. McCorvey. . Mandamus, by the State on the relation of D. B. Mims against L. J. Bugg, as Chairman of the Democratic Executive Committee of Monrqe County and others, to require petitioner’s name to be placed upon the official ballot for the office of treasurer of the cqunty.. From ,a:judgment, denying the writ-petitioner appeals.

<p>Prohibition.</p> <p>1. Judges; Disqualification, — Under Acts 1909, p. 263, the judge who appoints the court stenographer may personally hear and determine the charges as a basis for his removal, although sworn to by the judge himself.</p> <p>2. Court; Offices; Stenographer; Place of Service. — Under Acts 1909, p.-263, the judge appointing the court stenographer has no right to assign him to serve in another circuit to which the judge is assigned to preside.</p> <p>3. Same; Removal; Place of Trial. — Where the judge files charges against the stenographer of his circuit, he must try such charges at some appropriate place within that circuit, and cannot try them in another circuit to which he has been assigned to preside.</p>

<p>Appeal from Jefferson Probate Court.</p> <p>Heard before Hon. J. P. Stiles.</p> <p>Contest between Cornelia Bell and another, against Mary Bell, and others, over the proper disposition of an estate. Judgment for plaintiffs and defendants appeal.</p>

Heard before Hon. E. J. Garrison. Action by H. E. Martin against W. R. Walker and George Gosdin, as partners, for the penalty,for the failure to satisfy the record of a mortgage. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 450. The notice is as follows: “Goodwater, Ala., 2-18-15.

Heard before Hon. Henry B. Foster. Will Brown was convicted of violating a city ordinance, and he appeals. Defendant was convicted of violating a prohibition ordinance of the city of Tuscaloosa on a warrant issued, by the recorder on May 21, 1914.

<p>Appeal from Morgan County Law and' Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Application by F. M. Collins for mandamus to T. R. Ryan, as treasurer of Morgan county, to compel him to pay the amount due on a witness certificate. From a decree granting the writ, the treasurer appeals.</p> <p>The following is the certificate directed to be set out:</p> <p>Grand Jury Certificate.</p> <p>The State of Alabama, Morgan County.</p> <p>Jim Garth</p> <p>The State v. Grand Jury. No. 777.</p> <p>Law and Equity Court, Spring Term, 1912.</p> <p>Having proved attendance as a witness before the grand jury at said term, one day and for miles traveling to and from court, is entitled therefor to-</p> <p>two-dollars.</p> <p>2 days at $1.00 per day, $2.00</p> <p>miles, at 5 cts., per mile, $ none.</p> <p>W. A. Boger, Foreman.</p> <p>The above and foregoing certificate was certified as a claim or charge against the fine and forfeiture fund by the clerk of the Morgan county law and equity court,, and was duly filed by T. R. Ryan, as county treasurer of Morgan county, Ala., as shown by the following indorsements appearing on the back thereof, to-wit:</p> <p>The State of Alabama, Morgan County, Circuit Court.</p> <p>The state failed to convict in this case.</p> <p>A. S. Blackwell, Clerk.</p> <p>1-18-13.</p> <p>File No. 2694. Filed in my office Feb. 24, 1913.</p> <p>T. R. Ryan, County Treasurer.</p> <p>Paid No.- ■ F. M. Collins.</p>

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Mandamus by the Ensley Motor Car Company against Caine O’Rear to compel him as County Treasurer to pay a warrant, ordered issued by, the Court of County Commissioners. From a decree denying thie writ petitioner appeals.</p>

Heard before Hon. A. E. Gamble. Mandamus by Henry W. Dunn against F. J. Dean as Judge of Probate, to compel respondent to receive relator’s declaration, and place his name upon the ballot of his party to be voted for for the office of County Commissioner under the general law. From a judgment denying the writ relator appeals.

Heard before Hon. Gaston Gunter. Mandamus by Sloss-Sheffield Steel & Iron Company originally directed to C. Brooks Smith as State Auditor, and revived against M. C. Allgood as his successor in office, to compel him to issue his warrant for certain license taxes paid into the State Treasury under an act declared unconstitutional and void. From a judgment granting the writ the Auditor appeals.

<p>Taxes.</p> <p>Taxation; Collection; Liability ©n Bond. — Where a tax collector authorized the county treasurer to apply taxes collected íor a certain year on those due for the preceding year, or knowingly permitted such application without objeciton, he was guilty of a conversion of the taxes collected, rendering him and his bondsmen liable.</p>

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John H. Disque. '</p> <p>Ejectment by S. E. Jordan against R. B. Kyle. Judgment for plaintiff and defendant appeals.</p>

<p>Ejectment.</p> <p>1. Property; Possession; Presumption. — The possession of real property raises the presumption of ownership.</p> <p>2. Ejectment; Evidence;- Conclusion. — Where it appeared, that defendant held possession under a default judgment in a previous action against the present plaintiff, plaintiff, by introducing a decree of the probáte court authorizing a sale of the property by the tax collector, drawn in- Code form, and ,- reciting that notice of the proceeding had been duly gievn, for the purpose, of showing that defendant claimed under a tax title, and in’ anticipation of á defense therein, was not divested of a right to show that, with respect'to the ’ recited notice, the decree was without the jurisdiction of the court.</p> <p>3. Taxation; Sale; Notice, — Under § 2272, Code 1907, the record, although importing notice to Georgia Armstrong, did not import notice to her personal representative, she having died before the rendition of the decree directing a sale of the property for taxes.</p> <p>4. Same; Jurisdiction of the Probate Court. — In proceedings for the sale ■of property for delinquent taxes, the jurisdiction of the probate court is limited and statutory, and in order to sustain its judgment, the record must show the facts essential to its jurisdiction, in the absence of other proof of the regularity of the proceedings that went before.</p> <p>5. Same; Lo-st Notice; Proof. — It is competent to prove its contents where the notice of a tax sale given to the person assessed, or to his personal representative, has been lost or mislaid.</p> <p>6. Same; Deed as Evidence, — The probate judge’s deed in a tax sale is only prima facie evidence of the regularity of all proceedings subsequent to the judgment recited by them, and does not cure defects in the record of the judgment, and its necessary antecedent proceedings under § 2397, Code' 1907.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Detinue by Rebecca Garden as administratrix against W. M. Knight. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from Court of Appeals.</p>

<p>Detinue-</p> <p>1. Trial; Exclamation of Counsel. — Where defendant’s chief witness was-' being examined, and, immediately following his denial of a fact which seems - to have been overwhelmingly established, the exclamation of plaintiff’s counsel: “Look out, now, hold on! watch how you testify! somebody may be indicted for perjury!” was improper.</p> <p>2. Appeal and Error; Harmless Error; Conduct of Counsel. — Where witness’s testimony was in no wise affected.thereby, and the witness retracted-nothing, but pointedly supported every fact relied upon by defendant,.improper exclamations of counsel was not prejudicial.</p> <p>3. Same; Review; Assignment. — Where the objection- invokes no ruling of the court, it affords no basis for an assignment of error with respect' thereto.</p>

<p>Ejectment.</p> <p>1. Landlord and Tenant; Adverse Possession; Statutory Notice. — Adverse possession does not run in favor of a tenant at will under the owner until the tenant files a declaration with the probate judge asserting such adverse possession, as required by § 1541, Code 1896.</p> <p>2. Adverse Possession; Evidence. — One claiming by adverse possession cannot introduce letters from the owner merely giving permission to occupy the land when there has been no disavowal of the owner’s title.</p> <p>3. Same; Duration; Tacking. — Possession that was adverse under the statutory provision of the Code of 1896, may be tacked to a possession adverse under the Code of 1907.</p> <p>4. Same. — If defendant’s possession was adverse during and under the period covered by the Code of 1907, and had no adverse possession under the Code of 1896, the two could not be tacked to make the holding complete.</p> <p>5. Same; Hostile Character; Co-Tenancy. — Possession of land by the son of a deceased owner is presumably for the benefit of the estate and the coheirs, and is not adverse to them until some hostile act occurs.</p> <p>6. Executors and Administrators; Distribution of Estate; Collateral Attack. — An order of the probate court for the sale of a decedent’s land for distribution is not subject to collateral attack by an heir who was not a party to the probate proceedings.</p>

<p>Ejectment.</p> <p>1. Witnesses; Impeachment; Predicate. — Where defendant relied upon a deed from plaintiff which plaintiff claimed was forged, it was proper as laying a predicate for impeachment for defendant to inquire of plaintiff if she had not told a third person that she had deeded the land to defendant.</p> <p>2. Appeal and Error; Harmless Error; Evidence. — Any error in not permitting the question, was harmless where the expected answer thereto was subsequently allowed in evidence.</p> <p>3. Evidence; Opinion; Handwriting. — Where the action was ejectment and was defended on the theory that plaintiff had executed to defendant a deed to the land, which the plaintiff asserted was forged, it was not error to refuse to allow defendant to prove the genuineness of the signature to other papers by a witness to the deed, for the purpose of laying a predicate for the introduction of expert testimony, it not appearing that the other papers were material to the controversy, or that they were in evidence.</p> <p>4. Acknowledgment; Effect; Conclusiveness. — The question of whether an instrument is valid as respects the competency of the officer taking the acknowledgment must be raised by direct proceedings and not- by collateral attack.</p> <p>5. Same. — Where the officer taking the acknowledgment is without jurisdiction, there being no examination of the reputed grantor, and. no acknowledgment before the officer, his certificate is void, and may be attacked collaterally.</p> <p>6. Same. — To give an acknowledging officer jurisdiction of the grantor, the mere casual presence of the grantor and the possession of an instrument, purporting to have been signed by such grantor is not sufficient, as there must be a personal acknowledgment in some form.</p> <p>7. Same; Impeachment. — It is not essential to the impeachment of a certificate of acknowledgment for fraud or duress practiced on the grantor, that the certifying officer should have participated therein.</p> <p>8. Same; Evidence. — Where defendant set up a deed executed by the plaintiff to defendant, and claimed by plaintiff to have been forged, no right of bona fide purchaser for value being involved, the testimony of the acknowledging officer that he fixed his seal and certificate in the absence of the reputed grantor, was admissible.</p>

Heard before Hon.- W. W. HARALSON. Ejectment by Lillian Hayes, pro ami, against M. R. Landors. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear.

Heard before Hon. A.. B. Foster. Quo warranto by the State of Alabama -on the relation of W. M. Knox and others, against Moses Dillard and others. From a judgment for respondent relators appeal.-

<p>Partition.</p> <p>Partition; Title; Adverse Claim — Under § 5220, Code 1907, the probate court is without jurisdiction to proceed with the partition for sale for distribution among tenants in common, where an adverse claim is asserted, unless upon investigation it determines that the claim is not grounded in good faith.</p>

Heard before Hon. John H. Miller. Andrew N. McClellan had judgment in tort against A. P. Danforth, for $10 damages and $10 costs, and defendant entered a motion for judgment against plaintiff, for the residue of the cost, which judgment was denied and defendant appeals. Transferred from the Court of Appeals.

. Heard before Hon. Thomas W. Coleman, Jr. Proceeding by the State of Alabama against the Western Union Telegraph Company. Judgment for respondent, and. the State appeals. Affirmed. Transferred from the Court of Appeals under Acts April 18, 1911 (Acts 1911, p. 450) § 6.

Heard before.Hon. John H. Disque. Action by R. F. Neely against G. W. Thrasher and others, as indemnitors by bond to the sheriff to procure the levy of. an execution. Judgment for plaintiff and defendants appeal. Transferred from the Court of Appeals.

Heard before Hon. R. C. Brickell. Action by E. D. Reynolds against S. P. Neely, in trover, tres- ' pass and detinue. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals.

Heard before Hon. Wm. E. Fort. Sam Martin was convicted of murder in the first degree, and he appeals. The facts sufficiently appear. The following charges were refused to defendant: (4) The jury must construe every reasonable doubt in favor of defendant. (8) If any member of the jury have a reasonable doubt of the guilt of defendant from the evidence, the jury will give the benefit of the doubt to defendant, and not return a verdict of guilty.

Heard before Hon. B. M. Miller. Morris • Reynolds, Arthur Glass, and Hubbard Glass were convicted of the murder of Scott Craddock, and they appeal.

<p>Murder.</p> <p>1. Courts; Opinion; Statutes. — tinder § 5999, Code 1907, as amended by Acts 1915, p. 595, questions presented by charges refused to defendant on his trial for homicide which involved no new principle of law, require no separate treatment in the opinion on appeal.</p> <p>2. Homicide; Self Defense. — Charges based on the theory of self defense which pretermit the duty to retreat are faulty.'</p> <p>3. Same; Place. — The fact that at the time of the shooting defendant was m a public road, made no.change in the rule as to his duty to retreat.</p> <p>4. Same; Freedom from Fault. — Where it clearly appeared that the person slain made a sudden and entirely unprovoked attack upon the defendant with a deadly weapon, and was in the act of effecting upon defendant such murderous purpose, no duty to retreat rested on defendant.</p> <p>5. Same. — Charges upon self defense which failed to hypothesize defendant’s freedom from fault in bringing on the difficulty, were properly refused.</p> <p>6. - Same; Abandonment of Difficulty. — Where the evidence showed that deceased and defendant had some dispute two hours previous to the 'fatal encounter in which deceased threatened an assault upon defendant, and defendant thereupon went to his home and subsequently and voluntarily returned and called deceased out of the house, it afforded no ground for instructions on the theory that defendant abandoned the difficulty.</p> <p>7. Charge of Court; Argumentative. — It is proper to refuse instructions which are argumentative.</p> <p>8. Same; Undue Emphasis. — It is proper to refuse charges which give undue emphasis or prominence to particular portions of the evidence.</p> <p>9. Same; Covered by Those Given. — It is not error to refuse charges covered by written charges -given.</p>

<p>Murder,</p> <p>1. Statutes; Construction. — Local Acts 1915, p. 20, is not violative oí the Constitution either of § 104 or § 106, the publication of the intent to apply therefor having been published only in Marengo county, since the holding of the court in that county and its detachment from the first circuit in no manner affected the other counties in the district.</p> <p>2. Clerks of Courts; Statute; Instruction. — Under § 6, Local Laws 1909, amended by Local Laws 1915, p. 62, and Local Laws 1915, p. 20, the person occupying the position of circuit clerk was still ex officio clerk of the law and equity court, as it is the duty of the court in construing legislative enactments with doubtful meaning to carry out the legislative intent, at the time of the approval of the amendatory act.</p> <p>3. Charge of Court; Reasonable Doubt. — Supposition has no legitimate sphere or habitation in judicial procedure, and hence, a charge asserting that the jury cannot find defendant guilty unless they believe him guilty beyond all reasonable supposition, was properly refused.</p> <p>4. Criminal Law; Appeal; Duty of Court.-■ — It is the duty of the court on an appeal in a criminal case, after giving careful consideration to questions raised and insisted upon by counsel in argument, to -also give careful consideration to all other questions presented by the record.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. Wm. E. Fort.</p> <p>Harry Paitry, alias, etc., was convicted of murder and he appeals.</p>

Heard before Hon. H. A. Pearce. Assumpsit by R. M. Lee against the Georgia Cotton Company. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals. The assignments of error relative to evidence sufficiently appear. After the trial was entered upon plaintiff offered an amendment to the complaint, which defendant, moved be stricken from the file, which motion was overruled. The following charge was refused the defendant.

J. J. Curtis. Action by Mary Robinson, as administratrix, against the Maryland Cóal & Coke Company. From a judgment for defendant, plaintiff appeals. The first and second counts are under the first subdivision of the Employers’ Liability Act (Code 1907, § 3910), and allege the defect to be in the trolley wire in that the supports which held the trolley wire in place were broken.

Heard before Hon. John C. Pugh. Action by Oscar M. Stagg against the Birmingham, Ensley & Bessemer Railroad Company, for damages for injuries alleged to have been sustained from the negligent construction of its tracks in the street. From a judgment overruling demurrers to the complaint defendant appeals. Transferred from Court of Appeals.

Heard before Hon. E. J. Gilder. Bill by John H. Minge against W. C. Clark and others. From a decree for respondents, complainant appeals. The following is the decree of the law and equity court: (1) This cause, coming on to be heard, was submitted upon respondents’ motion to dissolve the injunction issued in the cause and upon respondents’ demurrers to complainant’s bill of complaint, was argued by counsel, and duly considered by the court.

Heard before Hon. E. C. CROW. Action by O. T. Miller against the Western Union Telegraph Company, for failure to deliver a death message. Judgment for plaintiff, and defendant appeals.. -Transferred from Court of Appeals under Acts 1911, p. 450, .§. 6. The message was addressed to O. T..Miller a,t No. 10.09 East Birmingham, Ala., and announced the death of the father of said Miller, and was signed by J. F. Miller.

Heard before Hon. W. W. HARALSON. Action, by the First Bank of Crossville against J. D. Hall and others on a note. Judgment for plaintiff by default, and upon motion of defendant, the court declined to set aside or annul the judgment, and defendants appeal. Transferred from Court of Appeals.

Heard before Hon. John H. Disque. Action by Fred F. Wheeler against the Standard Steel Company, for damages for injuries suffered while in its employment.' Judgment for defendant and plaintiff appeals.

Original petition in the Supreme Court. Petition by Mary Edwards for mandamus to require the Law and Equity Court of Mobile to vacate an order, remanding an 'unlawful detainer case to a justice of the peace, and to restore the cause to the docket for trial.

Heard before Hon. Saffold Berney. Action by the Holt Lumber Company, against Mrs. I. N. Givens, for deceit in the sale of logs and for breach of warranty. Judgment for defendant and plaintiff appeals. Transferred from Court of Appeals. ' The evidence tended to show that T. E. Broussard, as the .agent of Mrs. Givens, carried to the Holt.

Heard before Hon. W. W. Haralson. Assumpsit by J. F. Hooper against the town of Albertville to recover for property unlawfully sold for taxes. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

<p>Appeal -from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by James F. Sulzby against Mary Palmer to foreclose a mortgage. Decree for respondent and complainant appeals.</p>

Application by Barrett Brothers Shipping Company for certiorari to the Court of Appeals to review and revise the judgment of said court in the case of C. H. Minge & Co. v. Barrett Bros. Shipping Co., 14 Ala. App. 468, 70 South. 962.

•Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. The Hershey Chocolate Company' brought suit against the Joseph A. Yates & Company, for the breach of a receiver’s bond, and had judgment by default. On motion of defendant, the judgment was set aside and a new trial ordered, and plaintiff appeals. Transferred from Court of Appeals.

Heard before Hon. Charles W. Ferguson. Action by Walter H. Carlock against the Central of Georgia Railway Company, and another, for damages for unlawful arrest. From the judgment for plaintiff, the railroad company appeals.

Heard before Hon. C. W. Ferguson. Action by J. P. Howard against the Republic Iron & Steel Company, for damages for injury suffered while in its employment. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

<p>Assumpsit.</p> <p>1. Evidence; Hearsay; Declaration of Agent. — Where the action was against a bank to recover for a deposit alleged to have been made, where the deposit was denied, evidence of a statement by the cashier was not admissible since the declaration did not relate to a matter in the course of the cashier’s duty, but was merely narrative of past events, and was not binding on the principal of the bank; the question at issue being not the title of the bank to the money, but whether or not the deposit was made.</p> <p>2. Same. — In such case, evidence that the cashier stated to another witness that Phelps made the deposit for his own benefit, and not for the benefit of plaintiff, was inadmissible.</p> <p>3. Same; Admission Because of Other Evidence. — Irrelevant, incompetent or illegal evidence may be admitted to rebut evidence of like character; and while a hearsay declaration may be rebutted by evidence of a similar nature, the rebutting evidence must be directed, not to the ultimate facts, but to the hearsay declaration.</p> <p>4. Banks and Banking; Deposits; Evidence. — Where the action was to recover deposits alleged to have been made, and the bank books were introduced in evidence, and did not show the deposits, evidence of defalcations by the cashier which raised an inference that he converted the deposits, is admissible.</p> <p>5. Evidence; Collective Facts. — A witness in a position to know may testify that a bank suspended business, without stating the facts on which he based his statement of the collective facts, as the party objecting has the privilege of cross examining as to the subsidiary facts.</p>

Heard before Hon. A. H. Alston. Action by G. W. Clark against John M. Morrison and others, for damages for injuries in an automobile collision. Judgment for plaintiff and defendants appeal. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 450. The pleadings and the facts sufficiently appear., The following charges are referred to in the opinion: 8.

Heard before Hon. E. J. Garrison. Action by Mrs. M. L. Roberts against E. T. Lamb, as’receiver of the Atlanta, Birmingham & Atlantic Railroad Company, for damages for' maintaining a nuisance. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals.

<p>Setting Out Fire.</p> <p>1. Pleading; Demurrer; Verification. — A plea in abatement when required to be verified under § 5332, Code 1907, is demurrable if not verified, although it was subject to motion to strike on the same ground.</p> <p>2. Evidence; Opinion; Value. — A non expert may give an opinion as to value.</p> <p>3. Same; Amount of Insurance. — Where the action was against a railroad for the destruction of property by fire, it is not proper to permit evidence as to the amount of insurance on the burned property, since it could not properly tend to establish the value of the property.</p> <p>4. Corporations; Ultra Vires; Contract Exempting From Liability.. — A contract between a railroad company and a corporation, whereby the railroad company is exempted from negligent fires in consideration of the use of the part of the railroad’s right of way in connection with the business of the corporation, is void as ultra vires the corporation if it is not authorized by the charter of the corporation.</p> <p>5. Same; Ratification by Stockholders. — By a ratification thereof the stockholders of a corporation may render binding acts done which arp within the powers of the corporation, although ultra vires its officers or a mere majority of the stockholders, but they cannot ratify acts done ultra vires the corporation.</p> <p>6. Railroads; Setting Out Fire; Burden of Proof. — Where the action was against a railroad for negligently setting out fire, and the negligence is alleged generally, proof that the fire was caused by sparks from the railroad locomotive, makes out a prima facie case for the plaintiff.</p> <p>7. Same. — In such an action, such a prima facie case casts the burden on defendant of proving not only the proper equipment and construction of the locomotive, but that it was properly and skillfully operated.</p> <p>8. Same; Jury Question. — In this case, it was ior the jury under the evidence to determine the origin of the fire, as well as the sufficiency of the equipment, construction and operation of the locomotive.</p> <p>9. Same; Instructions, — A charge asserting that the mere fact, if it be a fact, that the property of plaintiff was discovered to be on fire soon after the passing of one of defendant’s locomotives, raised no presumption that said fire had originated by sparks escaping from the said engine, is not only argumentative, but ignored other facts tending to show that the engine set out the fire.</p> <p>10. Same. — A charge asserting that if the jury believe from the evidence that defendant used a spark arrester of an approved pattern in general use, which upon inspection by competent persons at or about the time of the fire mentioned, appeared to be in good condition, and that said engine was run and handled by a competent and skillful engineer, in the ordinary manner of handling such engine, at the time and place when and where such injury occurred, and if you further believe that said fire originated by the sparks escaping through such spark arrester your verdict should be for defendant, etc., was properly refused as omitting mention of the requirement of a properly constructed engine.</p> <p>11. Charge of Court; Covered by Those Given. — It is not error to refuse charges substantially covered by charges given.</p> <p>12. Corporations; Ultra Vires; Ratification. — Acts ultra vires the corporation because not authorized by its charter or necessarily incident to its charter powers, cannot be ratified by the stockholders under § 233, Constitution 1901.</p>

<p>Murder.</p> <p>1. Homicide; Self Defense. — The fact that the killing of deceased was made necessary to enable defendant to recover some money which deceased had taken from him, could not justify the killing.</p> <p>2. Same; Instructions. — An instruction on self defense which fails to negative the fault of defendant in the matter, or that defendant used any more force or violence than was necessary to obtain his property from deceased, or to defend himself against deceased, was properly refused.</p> <p>3. Same; Provoking Difficulty. — A defendant cannot justify the killing of another by showing the necessity therefor produced by his own wrongful act.</p> <p>4. Same; Retreat. — The right to kill in self defense does not arise until defendant has offered or attempted to retreat, or to decline the combat if there is open to him a reasonably safe way of retreat, and which will not increase his danger.</p> <p>5. Criminal Law; Oral Instructions. — Where the court had instructed the jury as to each matter requested by defendant in writing, and defendant had not requested fuller or more specific instructions in writing, the refusal of the trial court to give oral instructions requested by defendant is not reviewable.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p>

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John H. Disque.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to'Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>