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l>ECEMB ER TERM, 1S87.

T HE SouTH & N oRTH A L ABAMA R AILROAD CoMPANY,

vs.

T HE PLANTERS' & l!ERCHA~Ts' )fUTCAL I NSURANCE COMPANY.

Before Honorables H. M. Soul-~tvill.e, ,Justice, Henry 0. T om]Jkins, cwd J ames B. Oohb, Special Justices .

• \ HGLl ~IE~T FOH HE·HEAlH~G. BY l'HOS. G .. JO.~ r:S .\N]) ,J. ll . '

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~rr tfie ~n~reme ·ill:&nrt JJf ~labama, DECE:\'IBER TERM, 1 887.

·THE SouTH & NoRTH ALABAMA RAILROAD Co:uPAXY,

vs.

'IHE PLANTERS' & MERCHANTS' M UTUAL INSURANCE C OMPAXY.

AHGU~IENT FOH HTHJEA1HNG. BY THOS. G. JOXRS AX]) .J. ~f.

FA LKN I~H. ATTOHXf.:Yo }'UH A PPI·:r.rJXT.

We are aware that the ardor of advocacy blinds the judgment-that long endeavor to ma,in tain one side of a cause often nurses doubtful argument.s until they grow into abiding convictions, and that convictions thus formed unconsciously blunt the power of critically weighing the reasons for an adverse judgment, after the most earnest and conscientious search for truth. Yet, after giving due weigbt to these considerations and the high ~tbili ty of the court, and after thorough· and candid examination of the opinion, we are, nevertheless, impelled to a str?ng conviction that a different result should have been reached, and that we perform a duty to the court and our client in l'espectfully 1~equesting your honors to re-examine the opinion and set aside the judgment of affirmance.

We will take up seriatim the several rulings, which in our opinion cannot be maintained.

THIS COURT NOT BOUND BY FORMER RULINGS.

First. As we understand the opinion the court holds that it is precluded, by decisions on former appeals, from re-

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considering its former cons truction of the transfer statute. We respectfully submit that in so holding the court erred. Sec. 681, (576) of the Code expressly declares, when two jus tices are disqualified, that the Governor must commission two members of the Bar of the Supreme Court, and decbres that " the person so appointed, with the jus tice of the Court who is com petent to sit, shall compose the Sup1·eme Court for the trial and decision ·of such cause, with all the powers, priYileges and duties of the Supreme Court."

Among the d.uties enjoined by law upon the Supreme Court, is hat mentioned in Section 683 of the Code, which expressly requires that where t here is confl ict between its existing opinion and any former rnlinf! in the case, it mus t be goYernacl by what in its opinion at that time is l'aw, without regat~cl to any for mer r uling in the case. If this tribunal is the Supreme Court of Alabama, it would seem <.:lear t hat the duty is enjoined on it uy s tatute, in plain terms, to decille this case according to its opinion at this time, regardless of former rulings; if s uc;h former ruling is not n 0 w satisfactory. T he fact that two jus tices are disqualified, does not change the ch aracter, power, or duties of this t ribunal, or make it any other or different court than the S npreme Court of Alabama. Tile cour t is the same, though the person nel of the judges ma.y be diffBrent. The members of this tribunal cannot question or deny that this is the Supreme Court of Alabama. If it is not t he Supreme Court of .Ala.ba,ma., i ts members cannot lawfully git in juCigmeut in this case. They are not. arbitrators. They we re not chosen h,v tbe parties; but commissioned. Arbitrators can not affirm or reverse a judgment, or set in motion th ~?. p rocess of this court. If i t is, as we insis t it is, the Supreme Court of Alabama, t hen one of its d uties is to conform to Section 683; a.nd we respectfnlly insis t that it is uot bomul hy any thing heretofore decided in t his cause.

We respectfully call attention to pages 8 and 9 of the suppleml'nta.l bri.ef, filed by us in this cause, which shows that on ihe first appeal two of the judges cannot be said to have

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expressed any op1mon as to the effect of the transfer statute, and one of them intimates strongly that it cannot have the construction insisted on by appE-llee. On the second appeal the court held, tLat the appell('e's contention was right ; but does not discuss the arguments in favor of this construction of the statute, or combat, or criticise the argument in support of a contrary view. We insist that the construction of the statute is still open to this court, and we earn~stly request that its former ruling on this point be re-examined, in connection with our printed arguments. The construction now ~i ven the statute is certainly the most latitudinous and sweeping that can be given it, and travels, as we respectfully submit, far beyond its letter and spirit.

THE RULINGS EXCLUPING EVIDENCE OF THE S:MELL OF LIQUOR

ON THE ;)[ATE, &C.

Second. We insist that the court erred in holding there was no error in excluding the testimony about the strong "smell of liquor" on the mate and the merry st<:1te of the crew.

This question was elaborately argued by us, and the authorities cited and pressed upon the attention of the court. Th€1 opinion gives no reason for the ruling, or any intimation of the grounds on which it is rested. We can only conjecture the views of the court. If in so doing, we inferenti<Llly impute to the court positions which it does not maintain, we will be pardoned; since e\'ery_ supposed argument against the correctness of our views, must be discussed in the absence of any finger boards to indicate the views of the court.

Bearing in mind that the main issue was whether the collision was causell by the negligence of the crew -that the proof tended to show that the collision took place in the night time·-that the ca7dain teas absent and tile boat in charge of the m~tte-that the Yessel was run by steamthat the duties of the crew pertained to a matter re-

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q uiring skill and judgment on their par t, tha t there was testimony to show that the construction of the bridge had made the passage very dangerous and constituted a decided impediment to navigation, that t hose in charge were

• wam ed whore to come through a.nd signalled to by lights, &r.,- i t seems to us ~cootestible that any legitimate evidence was competent which tended to show that the crew were negligent or incapable at and before the collision.

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We base been unable to fi nd any authority, anywhere, which denies the right of a defendant, who claims that an accident was not caused by his negligence, to offer proof of facts tending to show that the persons in cha rge of a boa.t or vehicle, which colliuecl with him or his property, were unfit to discharge their duties at t.he time ; or wore in a condition in which they could not have t he proper use of their faculties. We find tl1at this is cons tantly allowed in all courts ; and it is no where denied, unless the decision in th is case denies the proposition.

R ule Detennining Admissibility Q( E vidence.

It bas often been said by this court that "in determining tho u,dmissibihty of evidence its sufficiency must be los t s ight of in a great deg ree. It may be weak and inconclusive, yet if it is relevant and has a tendency to prove a material fact, i t cannot be excluded without invading the province of the jnry."-S. & N. Ala. R. R. v. H enlein, 52 Ala. 610. Again, it is said in Campbell v. State, 23 Ala. 44, "Circumstances which, considered separately, are of •ery lit tle importa.nce and sbed but dim 1·oy of light upon the transaetion, may, when grouped together and considered in the aggregate, constitute a chain of eYidence which draws the mind to a Yery satisfactory conclusion."

In an ea,rlier case it is said : "The general rule in regard to the releyancy of testimony is that facts a.nd circumstances whielt , when proved, are incfl,pable of affording any reasonable or jns t presumption or infe1·ence in regard to a material fact or enquiry involved within the issue, cannot be given


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in evidence.''-Governor v. Campbell, 17 Ala. 566. Another test is given in a later case, in which i t iH held, if " no presumption to be drawn from the circumstances offered in evidence ought properly to have uny 1.ceigld upon the mind~ of the jury, the court should exclude it;" othr.rwise it is bound to admit the testimony, however weak or inconclusive in itself, and let the jury pass up~n its ~;u fficiency. This is an elementary rule, laid d own in all the text books, and supported by numberless deciqious of the highe!-\t courts in this country aud in England. I t is t he set tled law of Alabama.- 1 Brick. Dig., p. 809, § 81.

Again, it is beh1, " if evidence is relevant to the iHsue, it cannot be rejected by the court because, nnle!'s assis ted by other testimony, it will not eotablish the point in issue."-1 Brick. lJig., p. 809, § 82. ·

As is said by Goldth waite, J., in Spear v. Cross, 7 P orter, 439, "It is not perceived tha,t in those cases, which rl<'; )(mcl on more than one.fact, that it can ever be a matter of much importance, at which end of the testimony the p1oof commenced. In no case of this kind would the right of action be com]ilete without sho" ing the facts in connectioo with each other; and if the evidence offered is legal in its character, it should not be rejected, · because other eYidcnce making out the whole case [and we say, by parity of reasoning, thf\ whole issue] is not yet before the cour t and jury. If, when the case is closed, enough is not shown to support the action, the whole body of evidence may then be irrelevant for want of some essential part; but until thctl tiuu' it is not the province oj the cow ·t to 1·ejecl it, if legal."

The reason for this is ~pparent. Several fa.cts or circumstances may be necessary to prove an issue, and no two or more unconnected with the other m<ty suffice. If tbe evidence offered a:g to the first predicate or any other prediC1Lte is rejectec..1, it is useless to offer to prove th~ other predicates, since unconnected with the first, they do not proYe the issue. H ence injus tice is done the part)·, allll he is prevented from making out his casf\; wheren.s, if the cour t

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1.\'aits until n.ll the evidence is in, and then rejects i t as ins ufficient, no wrong is done. The fact that testimony might- be properl.Y ruled out, after all the evidence is in, is not s ufficient to authorize its rejection in limine, or relieve s uch error of inju!'J ·

It is decht red. in G reenleaf on Evitlet1 r e, § 82, tha.t the select ion of weaker instead of s t ronger p roofs will uo t jnstify the exclusion of the weaker, when i t is in i ts nn.ture prim11.ry a nd r elev<wt. Wbeu it tends to p rove the fact, i t is competent.-1 Greenleaf Evidence, § 51 <t 440; McCreavy v. 1' urk, 29 Ala. 245.

1'he Tustimony is Unol{jeclionaUe ht form rm<l j 1·om Compell·nt Sources.

The r ule being ascer tained, and its correctness as above declared cannot be disputed, let us next enquire whether thE> evidence offered was objectio n<Lble in for 01, or was from i ncompetent sources. \ Ve say, most unhE>sitatingly, no!

I n the .first place, no objection was made to the several iu terrogatories here co nee rued, when appellee fi led crossinterrogatories.

I o the stco1u.l place, the auswers were clearly r esponsive, as a comparison of them with the questions will conclusively show. If there can be a doubt about this, i t must be dispelled by reading Shook v. Blount et al. 67 Ala., bo ttom of page 300, and top of page 301, a ucl tbe q uestious ~tnd auswers bottom of p. 295 and to p of p. 296.

I n tLe third pl~tce, even if t he a nswers had not been responsi \'e, the objection could no t be taken at the s tage of the proceed ings at which appellee made his motion to excl ude. 'I'bis bas long been settled iu Alabama.-1.\lcCreary v. Turk, 29 Ala. 245, and that decision has never been questionf>d or depar ted from.

In thefou,dh place, some of the excluded state ments were din•ctly callerlfo1· by the opposite pa1·ty .- R ecord, p. 168. As is said in Edgar v. JUcArn, 22 Ala. 812, paragraph 6 : "They were in response to the cross-interrogatories, and it

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was not for the plaintiffs, after they found the proof would .. mili tate aga.inst them, to excluJe it."

One not a.u expert may testify whether a man "n.pp~~recl drunk or sober ," even though not previously ;tcqnainted with him.-Castner v. Sliker, 33 N .• J. Ln.w, 395; People v. Eastwood, 14 N.Y. 5G2. Answers alike in principle with tlwse lwre involved, have been allowed even in COJJifol cases. Carroll v. State, 23 Ala. 28; State v. Houston, 78 .\ln .. 577; Raisler v. Springer, 38 Ala. 703; South and North Ala.bama Railroad Co. v. -;\IcLenclon, 63 Ala. 2(56. Re<>, al:;o, :Y.rcCreary v. Tnrk, 29 Ala. 2±5, where thi~ court holds, that "an ordinn.1·y pE>rson, having an opportunity of personal observation, and of forming a conect opinion," could testi fy that " tho·e 'lCCIS a S1!fficiency rf cttfic1'1'S a)i(l hmuls 011 soicl boat to 1·un her· in the mo11ner she was nm," and reYPrsed the judgLDent below, because such testimony was excluclNl.

In note 1st, Greenleaf on Evidence (15 ed ition),* 440, p. 535, it is said "non experts may give their opinions on questions of identity, apparent condition of body or mind, intoxication, insanity, sickness," &c. See n.lso, exhaustive opinion of Doe, J., in State v. Pike, 49 New Hampshire, :~99 .

L astly, see Cm·ney v. The State, 79 Ala. 18, where Chief J ustice Stone reviews the decisions on thi::; point and reconciles them. I n this httest exposition of the b.w on this sub ject, he declares: "that human emotions H.nd bnman passions are not in themselves physical entities, sncceptible of proof as sueD.. Like some acknowledged forces iu u:~.ture, they are seen only in the ~flect.c; they proclnce. Plat.slO'C', pain, .foy, sorrow, * ·X· * are of tbis class. So, the outcrop of emotional status [for instance, we say the meny stato produced by intoxication] can not, in thPir constitution, be made so far physical f~Lcts, or entities, as to become tla subject of intelligible word description. 'l'hey are proved by what is called opinion evidence -x· -x· * the opinion of th~ witness, based ou e:cpe1·ience and obse?'Vttfion of the ('Oil

duct, conversation, and facial expression of others in .,similar emotional conditions. * ·x- ·x· The reasoning in such cases


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is a J>08leo'ri, and the major proposition is b ut t he sum of every one's experience and obser vation. " Carney v. State, 79 Ala. 18,

In the light of these opinions, of what weight is the objection of appellee, that the statement of the merry condition of the crew, was but an "opinion, wi thout the facts ?"-and without information as to the witnesses' "guage for the merriment of sober men. "

Surely if Carney's case is the law of this Court, and the long line of its decisions to which we have referred are of any weight, we cannot be overbold in maintaini ng tha t the rejt>ction of the testimony as to the strong smell of liquor on the mate, and that the crew were more merry t han sober men woultl be, was palpably erroneous ; if objectionable only on the ground that i t was the "statement of their opiniou, without the facts," &c.

The cond uct or demeanor of men under the influence of liquor is seen and known everywhere. It forces i tself unbidden upon men and women in nearly every path and at every stage of life, and compels observation. 'l' here is not a child in this land old enough to talk, who has not seen the drunkard and does not recognize his staggering gait and drunken leer. H e comes an uninvited guest around the hearthstones, and in the p rivacy of sacred homes, and brazenly stalks in the high ways. There are none grown to manhood or womanhood, who has not seen the merriment of the man under the influence of liq uor. Its exhibitions are as well known and marked in men, a~ their action while under the emotions of joy, pleasure, sorrow or pain. The habits and conduct of men under the influence of liquor are as well known as any other habi ts and conduct of man. People are as conversant with this as wi t h general human nature. W hen it is said of a man that he was " more merry than a sober man would be," nobody is so ignorant as not to know what is meant. The impression sought to be conveyed-the status intended to be described- is thoroughly


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appreciated by every one, by reason of every ch y life, experience, observa.tion and knowledge. I£ there he one th ing above another as to which there is common knowlNl ge among people, and of which ordinary witnesHes are competent to for m an opinion, it is as to the difference bt>tween the merriment or conduct, of a "sober man," anu one " nnder the influence of liquor." U niversa.l exper ience gives tue "gauge of the merriment" for conduct of dr unken n.ncl sober

men. Even without abundant authority on this point, it wonld

seem on reason, if there was anyt hing on earth abont wbich common observers or witnesses can be perm itted to gi n·~ an opinion, that the q uestions and ans wers here concerned present that instance. Besides, two of the separate portjons of the evidence ob jected to, were s tatements of fr.tclthat the witnesses .smell liquo,· slnmg ~l]Jmt t/1e mole. These s tatements of f act cannot, by any possible reasoning, be tortured into the expression of opinions by non-exper ts.

Clearly each s tatement, whether i t be a s tat?ment of an 0pinion or of a fact, was u nobjectionable io tbese partic-

ulars.

It is always Admis.siblP, in Actions like this, to show that Oren· o1· Qtfice?·s we1·e I ncapacitated by ];!fluence of Lirzuo1'.

We come, therefore, to the next objection. vVas this testimony rAlevant to the issues in the casE>, did

it tend to prove any material issue or throw any light, however dim the ray, u pon the cause of this collision ?

It has been often held in case of railroacl and stage collisions and accidents, that i t might be shown, in order to prove negligence, that the drivers or brakemen wPre not at their posts ; that they were insufficient in number, or that the officers in charge were i ncompetent; either from la.ck of skill, want of rest, or because of sickness or the influence

qf liquor. P enu. Railroad Co. v. Brooks, 57 P <"t. S tate, 34:4. •


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In conrts of Admiralty, in this country nod in England, grea.t stress is laid upon the sober condition of officers, pilots, &c. Some of tbe cases have gone ~o far as to hold th~tt ~t • .prior hobit of intempentnce, mucb less proof of taking liquor at the time of the accident, may be proved ~Ls a circumstauce to show th<Lt the servant was negligent at a particular time afterwards, though there was no direct proof thnt be wn.s then nuder· the influence of liquor .

None of the courts, in dealing with the affn,irs of this ea.rth ignore the unin"'rsal exper ience of m<"tnkiud-whether its lessons be sought m the history of public affairs or in the pursuits and wal~s of every day life- that when a man i::; '' uutler the influeuce of liquor," it usually unfits for cliscLa.rg<> of duty, and is generally fatal to coolness and skill in <Lny business of hazard, or in any e mergency.

In the Great Republic, 23 ·wallace, 33 (which was a collision bet,Yeen boats), the Supreme Court, speaking of the act of a pilot who admitted that he bad been drinking that day, but not for six hours befot e be left port, says: " I t may be that he was not under the influence of liquor on this occasion; but if not, his conduct is iuexplicable on any other theory than ignorance of the ordinary r ules of navigation, or r eckless in attention to d uty. '!'here were ample means and opportunities to avoid thi::l collisir>n, and yet it occurred. In the midst of dangers, seconds of time are important, not to speak of minutes, and the ch'a1·-lteaded pilot who recognizes this fact and makes no ventures, is not apt to bring his boat in trouble." It is also said in that case, and it is pertinent here when it is remembered that the mate, whom we endeavored to show was drinking, was in charge of this boat : "It may be that this collision would haYe been avoided, if there had been any proper qtfice?· i n good season on the roof of the Republic superintending her navigation. 'rhe pilot seemed to have had on this occasion the whole charge of her navigation, for the captain, whose watch it9Vas, was sitting on the lower boiler deck talking to a passenger until his attention was called to the danger


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of a collision." Did not the e' •idence offered go strongly to show that the mate in command, who smelt "Rtrong of liquor," was not a" proper officer."

L. & C. R. R. Co. v. Cragin, 71 Illinois, 183, is a ea_<.;e di-rectly in point where the Supreme> Court of t hat State reversed the judgment below, because proof bad been n·jec·ted that the injured par ty s1nellerl of hquo1· shortly after the accident. Commenting on this, in connection with tiH' other circumstances, the court said: "If tln"s evirleuce IJe tne, it is hw dly '}J?·obable llw.l he 1.cus in co11dition to e:urcisr' ol'rl i oary ca1·e. All the evidence considered, we have uo do11/,t that the court below should have granted a new trial.-71 Illinois, 183. In another place, the same court says: ''It is a law of our nature to endeavor to presen ·e our lives; but the ins tinct is stronger in some than in other!;, and ob cr~.:ation teaches that a person Wtde1· the il!fluence (!l iltlo.ricufi,lg d1·inks is less capable of seein(J and a'l.:oiding d<wger, ancl is more 1·eckless in his concluct, and less regardful of his sa.fely."

lb. p. 184· In FitzgP-rald v. T own of WestoQ, 52 "'Wisconsin, p. 357, it

is said : "We think if the evidence Lenclecl to prove that deceased was intoxicated in any deg1·ee at the time of the injury, that circumstances, with other facts in the case, should have gone to the jury on the question of contribtl'-

tory negligence." W e have examined numberless decisions on this point,

and while a very few hold tha t intoxication is ]Jer se evidence of contributory negligence, most of them hold to the contrary; but all the case bold that evidence of a. person's being in liquor, where it might have contributed to the injury, is alwCtys competent to go to the jury. This is the wtive?·sal rule.-42 I owa, 315 ; 36 Conn. 321; 3 Allen, 402; 48 Maine, 477; 61 Ga. 114 ; 60 ~Jo. 323; 18 X T. 248;

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TJ,,. c.rcludul evidence does shed a vivid light on the Oauses qf the Colli;,ion.

A number of witne-.ses were examined. The "tendencies" of the testimony, instead of the particulars, were generally gi\'en in the bill of exceptions; though there was much evidence as to pa.rtieubrs. The Ca.pt<tin was not on board. The nHLte was in command. It was dark. The guards were lo,tded with cotton on either side. 'rhe testimony shows tlHtt before the boat struck, the bridge watchman halloed to the pilot, so loud as to be heard by passengers on the boat, to come "cenb ally through the lights," and there "would be no danger," and that be did not do tbis-(Rec. p. 164)-that the bo8t struck the pier or coffer-dam very heavily, notwithstanding it was a steam vessel. There was evidence tending to show tbat jugs, pumpkins, lurge l'I"N':s and other inanimate matter floating clown the river passed between the piers without touching them.-(Rec. p. 124). The evidence sbowed that the Blackford was a steamboat and a common carrier !or the transportation of passengers and goods, navigating the ri,er between Wetumpka and Mobile-that there was an opening of 91 ft. 9 in. on either side of the celltre pier for the passage of boats or oth~r things-(Rec. p. 103); it also showed the length and width of the boat. There was conflict whether the collision was with the bridge or with the coffer-dam. Son· e of the expert witnesses testified that the navigation bad been made very dangerous by the erection of the pier-others to the contrary.

The evidence also tended to show that this vessel was in the habit of navigating the river at this point, and its offiCHS knew, or ought to have known, its ~urroundings and dangers. It could be fairly presumed from the evidence (the presumption being that it complied with the la.w) that it wa" dulY licensed under the laws of the United State~. Its officers and crew were amena.ble to, and bound to exercise the degree of care exacted of them by, the acts of Congress ancl the rules of navig;tti•>u.


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On January ~3th, 1871, the sale of liquor was not prohibited in W~tumpka. or Montgomery, and each had p1aces where it could be bought at retail; at leA.st, the jury wou1d have been authorized to so find, even if the courts could not ta.ke judicial knowledge of the fact. The Blackford left Wetu mpka several hours behind time. Wba.t is the explanation for the delay? Was the delay occasioned b.Y the merry state of the crew ; or, in other words, hhd they been drinking there so that they cou1d not discharge their duties properly and load tbe boat in the usual time? Could and did they obtain their liquor there? Had the.'· been drinking on their upward voyage from :\Iontgomery? H ow else was the merry condition of the crew to be Recounted for? H ow was the stro'ng smell of liquor upon the mate to

be accounted for? I s it uncommon for men who smell strong of liquor to be

under its influence? I s it not rather uncommon for men smelling strong of liquor, not to be more or less under its influence? Evidence, therefore, that a man smells strong of liquor cert.ainly tends to show that be is under its influence. If the pleader starts out logically to prove that a man is in that condition, is not the first thing the production of evidence as to the cause in order to account for the ~ffect? Couple the strong smell upon the officer with the merry state of the crew, and the conclusion seems almost irresistible that not only he, but his subordinates, bad been drinking freely. At all events it nulhorized a Jury to draw that il~fennce or tended to do so; and, in connection with the other facts, tended to prove, if it did not demon; strate, negligence, even though the degree of the influE>nce of liquor, was not such as to produce drunken, ess. ?\lost assuredly it wa.s for tbe jury to determine all tbl?se things, and also whether the liquor "might have been on the mate's clothes, or in a bottle in his possession, or he might ha.ve drunk it after the collision." If the jury fonntl tha.t the mate was drunk shortly after the collision, it is, nudE-r the facts of this case, cogent evidence that he was under tha


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i nfluence of liquo r befot e a nd nt the t ime of the collision. It was fill' the j ury to say whet her the s trong s mell of liquor, to wh ich the witness testified, was fro m the breath, or fr om n botLie, or iu his clothes. F e w p ersons will have any donbt what is meant, when it is s ta.ted a mnn s melt s trong of l iquor. It is universa lly esteemed to convey the idea th<\t t he mnn biwself, his breath, or the exudations from his hotly, clntsecl the s mell. If phraseology is of doubtful im port it is for the jury to say what is mea.ut. - 52 Ala. 344.

O ne of the du ties r igorously exncted by all the courts o f the DH' rchant marine, is the kPeping of a proper lookout; and the failure t,> do so, especi;dly o n a vessel pro pelled by slcr11n, i~ the gra,·est neglige nce. - The Ari<tdne, 13 W allace, 478. It is <llso the duty of the comma nder to be on hand, w hPJ'<' hf' e<lll command, on a pproaching a place oi known dangPr. - :23 W a lla.ce, 33.

HPmPmhPri ng t hat t his collisiOn occurred after dar k, and heping in 1oind t he testimony as to the difficulty of uavig;tling there, t lu:> follo wing fro m the opi nion of the Su preme Oonrt of the Uni ted S t<ttes in the Ariadne, 13 W u.llace, 478, forcib ly describes the duties exacted of the mate, p ilot, antl t rew of t.he Blackford :

"N.tv igation there is not nnlike the trn.vf'Jier threading his way throug h the mazes of a forest, with t he d ifference the~t most of the objt=>c ts to be a voided are a lso in motion. The grPatest carf' and cautio n are necessary. Upon nothing cbe doE-s the safety of theBe concerned so much de pend. A 11/IIJ!II'Itl's uegl igence on h is part may mvolve the loss of hi~ ,.(lssel, w1tb a ll the propel ty <UHl lives on board. * * ,;. In tbe performance of t his duty the la w r equires inde-

f"liyalJl,, care and slePple.<;.s vigilance. Tbe rigor of the r e Cflllrement rises accord ing to the power and speed of the 'ehsel. I t is applied witb full force to the s teamships belougiug to our commercial ma rine."

Dicl th is boa t keep a "prope1· looko ut?" If there was a lookou t, was he sober and attentive to his duties? W as

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the pilot in charge duly sob er ? Why was i t neces~ary for a nother pilot to take the pilot h ouse and run the boat to }and ?-(See Record, pages 164, 165.) W~s any call made to back the boat, when it was found she was approaching the pier in the wrong direction, or with too much V<'locity ? Was there time and opportunity t o do this? If so, was the engineer who was to obey tbe order , or the officer whose duty it was to give it, duly sobe1 and attentive; or wAR there negligence in not observing the manner of approa.ch to the pier ? Was the mate, who was in command. at his proper place, and observing what was going on ? (23 Wa.ll. 33.) Was he d runk o1· sobe1·? H ow far was he under tbr

influence of liquor ? If the crew were hilarious, or " more merry tha n snhr r

men would be," while passing a k nown place of dn.nger, n.u<l a t and abou t the t ime of a collis ion, the fact is of d eE> p s ignificance, whether the merriment was due to the " influence

of liquor," or other cause. The rejected evidence s howed from w hE> nce the mE> rri ment

proceeded. It ans wers the question-were the crew a n<l mate drinking ? If that was the fact, it wa.s vitn.l proof for the cons ideration of the jury, in just ly determining wh E>tlH•r the mate had a clear head- good sight--anu thE> possession of his faculties-whether he a nd his crew exercisc<l due care. It shed s trong light on the movements of the hoa.twhether it approached the dra w properly-whether it w;ts steered between ,the two lights-whethE> r its mis taken direction could not have been arrested or corrected bE> fo re th<> collision, by backing or other use of its s tea.m powerwhether it was propelled with reckless forct>- whether its crew did its duty. It afforded a crucial test for ddt>rmi lling whether there was sleepless vigilance, and the PXt'rcise of skill a nd care in the numberless phases of duty ar isiug at the time of the collision. The rejected evidence cleared with a shining light, the obscure features of the collision, and gave an almost unerrin~ guage for testing conflicti ug theories of the litigants . Ther e is absolutely nothing 011


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which to defend an assertion that this testimony did not "tmd to prove any issue in the cause "-that i t did not " shed even a dim ray of light npon the transaction "-that it "was incapCTble of affording any reasonable or just presumption or inference in regard to material inquiry "-that "no presumption could be drawn from it, that ought prope1·ly to have any weight upon the minds of the jur.y."

It can not be said the negligence of the crew of the boat, does not debar the owner of goods from right of recovery.

69 N. Y. 470. 6 W harton, 311. 7 B. l\lonroe, :-39. 15 Ark. 18 1 M. <1.: M. 169. 8 C. B. 115. Beach on Con. Neg., Sec. 37, 118. See, also, the cases in Iowa, Wisconsin and P enns_y lvania,

cited i n Beach, Sec. 35, which even ap ply the doctrine to passengers.

Armstrong v. L. R. R. Law R ep., 10 Ex. -17. On this question, the overwhelming current of authority

is in our favo r, and we have not beeu able to fi nd a single adverse common law authorit_y in the case of goods.

Even if the cnurt could repudiate this strong tide of authority as to imputed neglige llce, it would not relieve of er ror rulings excluding evidence of negligence ; for, if such negligence was the cause of the injury (which is for the jury to say ), it is t he settled law of Alabama t hat the collision is not the.fault of t ile appellant, and it can not be made liable to any one for it.

It is not the gPneral rule, and i t is not jus t, to bold the defendant responsible, unless his.fault was the legal (·ause of the injury. E very one owes even the wrong-doer, especially one whose whole fault is mere nonfeasance, the social duty of good neighborhood not to aggravate the conseqnences by wltnt of due care, or by negligence. It the con-


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sequences of the misfeasance could have been avoided by proper care, the injury in la1c, is not the consequence of the wrong-doer's misfeasance; but is causecl by the plaintiff's own negligPnce. When the injury is thus caused, it is not the act of the defendonl in the sense of the law. This is settled htw in common law jurisdictions, firmly imbedded in the jurisprudence of Alabama. When, therefore, the injury is not cCiusecl by the defendant, in such sense that the law holds him responsible for it, but brought about by some one whose conduct the df:(endant is in no wise responsiblecan the settled rule of law be overturned by the shipper's plea, that lte was not responsible for the conduct of the boat either-and that, therefore, ipso facto, the injury is converted into one caused by the d~fencl(lnt? The vital, underlying, question is, who, legally speaking, caused the injury? The law says that when the steamboat owner, or anybody else, directly and proximately contributes to the injury, by want of proper carP, " tire dCimage is conside1wl qf his otm p1·oduring."-Memphis & Charleston Railroad v. Copeland, 61 Ala. 379; and this too, in a case involving the destruction of life. If, in law, the steamboat carrier producPd or caused the destruction of the goods, it was the carrier's act, and not the defendant's act. If not in law the defendant's act, can it be said with any show of law, logic, or reason, that it becomes the defendant's act-that defendant caused the injury, or became responsible for tho carrier's negligence; because, forsooth, the shipper had no control over

the steam boat. The shipper had some relations by contract with the

carrier-we had no.ne. When neither party had control of the steam boat, that que3tion tecomes, in this aspect of the case, immaterial in determining whether the destruction of tbP goods was in :tny legal sense the act of the defendant.

However, this is not an open question in this court. That negligence of the crew of a boat on which another's goods are being transported, directly contributing to the injury, will bar the action of the owner of tbe goods against the


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tort feasor, is expressly decided m Alabama. - F armer v. McCrrnv, 26 Ala. 203.

The sui t there was agains t the s team boat Farmer, by t he owner of cotton being transported in a flat boat, with which t he steamboat collided. The court decided s tmightout that t he owner of the cotton could not recoYer, if tLose in charge of the flat boat were guilty of negligence which directly contributed to the collision. In this connection the court citt>s with approval, Broad well v. Swigert, 7 B. Monroe, 39 ; VatHlerplank v. Miller, 1M. & l\1. 169 - two of the authorities cited heretofore by us on this point.

TilE UXCOXSTITUTIOXALITY OF T flE TRANSFER STATUTE.

The cour t in its answer to onr a rgument on this point, sPems to have misapprehended it in some particulars. We did not contend t l1at the word "company" or " companies" necessarily inoluJ ed onl.r corporat ions, exclud ing firm s, associations and partnerships, though we did argne that such was i ts effect. The precise point urged u pon the court was this. The word " railroad company " or " companies" can include only railroad corporations or associa tious or firm s engaged in railroad business-that such terms could not include a single individual- that therefore the case ca.me within the decision in Smith v. L . & N. 76 Ala., 451, where the judgment was rested on the ground tha t the st<ttute operated "merely because two or more owned the b usiness," and yet did not bring an individual within i ts ter ms.

We cannot see how the words " any railroad company" can be construed as though it read " any single individual engaged in carrying on a railroad. " Clearly, we think, the s tatute makes a discrimination between the damage done by a railroad corporation, or firm or company, and the same identical act done by an individual in tltat busi ness. E ven if the law applied to single individuals, as well as corporations and firms, that would free the statute fro m only a por-


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tion of our objections. In view of the general rule as to maintenance, &c., it must be shown that there is something essentia.lly different betweeu such torts J:>y pfrsons operating roads u.nd those of othe rs, as justifies shidding some of the persons from these evils, and subjecting others to them. 'fbe act, the evil, the consequences, the nature of the wrong are identical in both cases; and yet the law operates on one, and does not opera te on the other. When this is so, the law cannot be upheld; there is not ·reason-a necessity-to justify the discrimination. Cooley Con. LiM., 391-393.

The court in its opinion ad mits that special laws "must be general in their application to the class to which they apply." The class cannot be narrowed or enlarged merely because the legislature designat<:s portions of it by a certain name. It would strike one as unconstitutional at first blush, if the legislature should provide that a farmfr, for instance, should not have the right to transfer his property, except under burdensome regulations, which did not apply to others s imilarly situated. Such partial restriction on his right could only be justified by the evil resulting from the transfer of the kind of property, and not from the occupation

qj the fco·me?-. The question of regulating occupations, or making dis-

tinctions under the police power,_ has nothing to do with tile questions here invol >eel. In the first place,. the constitution e~pressly provides that corporations, after being brought into court, shall stand precisely as individuals. Art.14, Sec. 12. The corporation sballsue and be "subject to be sued in all courts, in like cases as natural per~ons. " When a natural person could not be sued upon the identical car~e of action as br·ought ; then, if the constitution is of any force, tho corporation cannot be sued in such case.

The police power bas never been construed to authorize distinction in the courts between suitors suijuris, a.s to the mode of procedure or the r ights of patties; after the parties art3 iu court. The occupation of the suitor may be reg~ated diJferentl.Y from the rest of the community, and

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owing to i ts peculiar nature may give rise to actions which could not be brought against an individual in other circumstances; but the pQwer ends here, and cannot make discriminations as to the rights and privileges of the parties in the courts.

It is unquestioned , that after the reversal in this case, anybody but a railroad company- the Selma Bridge Comp~tny, for instance- could successfully maintain that plaintiff could not amend t he complaint so as to sue for all of this cotton in one sui t, and by reason of this legal defense au indiYidual standing in the attitude of appellant could not have been sued for all the cotton. Why the difference between appellant and others i n this respect ? I s it because of its occupation in carrying on a railroad? The occupation of the suitor can never be a reason for withholding from him t4e rights, in the courts, in the forms of procedure and defeuses to which they give rise, of which all other suitors may freely avail t hemseh-es.

1\lr. Justice Somerville, iu Joseph v. R andol ph, 71 Ala., 500, forcibly says "a s tatute is to be inter preted acco1 ding to the intention of the legislatu re apparent on its face, and its c!onstitutionality must be determined by its natural and reasonable effect. " I s not the natural and reasonable effect of this statute, to deprive appellant of equality in the courts?

Tbe same judge, in J oseph & R andolph, supm, says, "No pri nciple of construction is sounder than the common sense and cardinal rule that what cannot be done directly, cannot be done iudirectly. If the law should act u pon any other theory, it would subject itself to the just challenge of catching at sltadows, and not substcmces.~>~ The italics are his, not ours.

It is said in the present opinion that the statute affects only the remedy, and does not take away any right. But do we not effectually deny t he "equal protection of the law" and infringe upon the consti tution, when we hold that a man's occupation may be made the pretext in the courts


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for withdrawing from h im defenses ar ising in the methods of judicial procedUt e, which are left open to all others'!

I s he not deprived of his property, when others like him could not lose i t ? I s not the r ight taken from us, in this suit, of pleading the statute of limitations a!:> to some of this cotton? Certainly! F or, i f anybody else had been sued, under like circumstances, ancl th ~ pla.intiff b;~d amended as here, the plai ntiff could not have amended so as to sue for 11ll the cotton; 'b ut would have beeu compelled to bring a separate action for some of the cotton only-that i'd for some one owrrer, not joining all in the same suit-against which the statute·of limitations would have r un. It occurs to us that there are many regulations, which though not striking directly at defenses or rights, would be plainly forbidden. Could a law be val id which provided that witnesses in corporation cases, or the cases of par ticula.r classes, should not be s worn, while the general law remained that they must be> sworn in all otlter cases'? Would it be comformable 'to the constitution to hold that a mc.w':; occupation might jus tify requiring him to answer and plead in any less time: tha n that required of other par ties under the general law? These do not take awa y "any defense." Would

· not auy s uch discr imination, bet ween a corporation or any other class of suitors, in the modes and for ms of proc\3dure for the red1ess or defense of r i gh ts, be a Yiolation of Art

14, Sec. 12. It is said in the opinion t hat the considerations as to

champerty and maintenance would be of force if addressed to the legislature, bu t can have no influence with the court. We admit the power of the legislature to abolish the doctrine altogether. But so long a.;; the ~loctrine sta.nds generally,the question whether a particular statute is vicious class lt>gi::;lct.t ion or not, must be dt>terminNl h_r re>ference to the gent>mll.~w. I t i,.; :~ lll<Lxim of cnn.;titntioual la.w tha t ' ' tb t~ right nf P<tch individual must !-.tand or f<t.ll by the Rame rule o r law tl!;tt goYNll:'i en'ry other member of the body pol itic or hw d, nud.,.r :->imihtr circumstances;"


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for (~lS stated Wally v. Kennedy, cited with approval in Railroad Co. v. Morris, 65 Ala., 200,) "were it otherwise, odious individual8 and cmpomtions would be governed by one law, and the mass of the community and those who marie the law, by another; whereas, the geue1·allaw oflecting the whole community equally, could not have been passed." The general law is therefore always proper to be con::;idered, in determining whether a sta.tnte is vicious cla.ss legislation. The legislature ca.n not yoke particular men or occupations to discriminations or disabilities, when all others in the same situation are left free, e>en in case where the legislature might impa.rtially put the yoke on every body. The general law must always be looked to in ascertaining whether invidious legi~lation cau be sustained ; for the "law of the Iand"-the general law-furnishes the te~t of rights, and the extent of the shield under which the individual can claim protection.

The instance put by the court of the right of a transferee to sue on paper payable at bank, &c., we sub'mit, with all respect, does not meet our argument. The class of paper to which this law refer~, and on all 9( wliich it ope1·ates equally, is paper payable at bank-not the paper of men in pa1·ticulw· oc ·upa&ions payable at the bank; but every body's paper. We take it that the case presented by the record involves a very different question from that of the power of the legislature, to say tbat every body's paper, payable at bank, should be freely transferreu so that the transferee could maintain suit in l1is own name. If a statute had capriciously declared that ever} body's paper payable in bank, should have certain privileges; except, !or instance, the paper of ministers, or physicians, or lawyers, we admit that it would present a question like that now before .the court, and if long acquiesced in without challenge would be an argument against our Yiews.

There are obvious reasons which justify a difference between paper payable at bank and that pnyable elsewhere; or for that matter, between bank notes and paper made by


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bankers and those of other men·, which would abundantly sustain distinctions in these respects.

We may be pardoned for suggesting that the illustration as to the board of assessment of property of railroad eompanieR, telegraph, &c., ~wd the statute forcing each railroad company to charge certain rates, &c., and as to the duties of ever y railroad company to stop trains, &c., which it is said apply equally to persons, firms and corporations and individuals (which we do uot deny), are not at all illustrations or analogies of the qnE>HLion raisetl by us. These, with the exception of the taxing powers, are exercises of the police power; and are clearly applicable lo eYerybocly in the business, as there are reasons growing out of the nature of ~he thing commanded or forbidden, which easily sustain them. But the existence, in theRe. respects, of the police power being adm1~ted, and its applicability to individuals as well as corporations, does not touch the question of power to discriauna,te between suitors in the courts. The police power to discriminate has no room there ; for the conl:ititu

tion declares all shall be equal there. The legislature, n.s this court has held, may constitution

ally tax the gross receipts of telegraph companies higher tban the gross receipts of other persons or corporations ; and yet it would hardly be urged that the power to do this, is e....-idence of power to discriminate against the right!:i of a telegraph company as a suitor in the courts?

The same thing may be said of the illustrations as to "contrn.cts to deliver propet ty as rent," &c. If the legislature should say that this law should or should not <tpply to rents, according to the occupation of the promisor, aucl that occupation was such that there was no just reason for tre<tting men in it differently from otlH•rs, the law woultl fall within the case we ;lr now coosit1t>ring, ;uHl he ol,jectionahle <"LlSS l~>gis\a,tion. As tlH' sta.tnte ~tamls, uuy one may makf' a rontnwt to df'livPr propPrty as rPul, &e.

The distinetious mentiouf'd ;v·; to minors, ro;~rried women, bankers or tradc> rs and tile ltkf', ;~re ~~~~ sustained bec~:mse


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founded on . some just reason growing out of these conditions, for making the distinction refE>rred to. Whether such reasons exist, is a judicial question.-Joseph v. Randolph, supra : Tiedman on Police Power, p. 197; Beebe v. State, 26 Ind. 501.

Judging this law by the test that the lt>gis lctture cannot do indirectly what it is forbidden to do directly, we insist that it is unconstitutional. Its plain, pmctical, nud undeniable effect is this: "Be it enacted, &c., tl1at the general law as to maintenance and champerty in the case of torts by railroad companies, is bereby repealed. Be it further enacted, that the evils resulting in the adm lllistration of public justice from champerty and maintenance, are still so great in identical cases between all otbers than 1·ailroad corporations as to compel the State still to forbid nll transfers of cnuse of action for torts in all other cases whatsoever, whatever may be the name or nature of the firm, association, corporation or individual committing the tort."

The legislature cannot do this.-Cooley Con. Lim. 391-383; Durkee v. Janesville, 28 Wis. 464; Railroad v. Morris, 65 Ala. 197; Gordon v. Winchester Assoc'n, 12 Bush, 110; Holden v. J ames, ll Mass. 396; Wally v. Kennedy, 2 Yerger, 554.

We are aware that it is lctosely stated in some cases that a particular statute-say, for instance, one applicable to railroads-was not vicious class legislation, because it "applies to all railroads," &c. But the true principle is, that it ~s th13 nature and subject-matter, and the connection of the partit>s with it, and not the name given by the legislature, which determines the class upon all of whom the law must operate equally, or not at all. Otherwise the legislature might do the grossest injustice between man and man, simply by calling them by different names. There would be no end to its power to make vicious and ca.pricious class di:;tinctions.

Covington v. H oadly, 13 A. & E. Corpn. Cases, 273, gives a just reason for the distinction there, to-wit : that tile city

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was an agency of the State t o collect taxes.- B;\iley v. R ailroad, 44 Am. D ec., 593, declares only tha.t tLe l<>gishtlure may make a company l iable for damages in cE>rtaiu eveub;, past as well as future. D anville v. Pace, 18 Am. Hep. G63, invoked t he power of tbe legis lature to remove the tai ut of usury from corporate "contracts. It re-affirm s the fami I iar principle that no one has a vested right. to do wrong, and that a purely stntulory pri ,·ilege may be withdrawn.

None of these cases cited in the opinion conside red the phase here presented, of a legislative attempt to cl<>pri,·e suitors of a consti tutional r ight to avail themselves, iu like manner as all other suito1·s, of the established modes and forms of procedure in co.urts of jus tice and of p riYileges atld defenses growing out of them; or to make discrim inations bet ween classes of s uitors in this respect. Bes.ides, none of the constitutions of those S lates had any such provi~ions as Art. 14, section 12 of our Constitution.

At last, when wG analyze the question and ask what is the reason of the studied discrimination in this statute, dof'S not logic compel t.be auswer: Merely because the ~u it is brought against a railroad, whether a corporation, firm or company ; or, if you please, because the individual is engaged in conducting a railroad . Can this be a sufficlCnt reason for u pholding the distinction, and saving the law from condemnation as vicious, par tial and di~criminative -class legislation ?- Cooley Con. Lim., §§ 391- 3.

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RULING EXCLUDING FINK'S OPI~IOX.

The opinion s tates, and the record (p. 127) pro Yes, tha.t Fipk was an exper t as to t he matters enquired of. The evidence shows be was a very dis tinguished expert. He had made personal examination of the location of the bridge, and had noticed the currents, &c. The issues involved, were as to " interference with the 1tavigatiou of the river," "a question t hat those connected with the river and with .navigatiou, and tliose skilled in engineer ing were peculiarly


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well fitted to testify upon."- (.i\fSS. opinion, p. 20). Fink's opinion could, therefore, be g iven to the jury, not merely as to the bridge not beiug an obstruction to navigation ; but he could lawfully go further, and give his opinion as to its iuterfereuce with the passflr;e of hoat~. Being a n exper t he could state, for the information of t he jury, in view of his personal knowledge of the locus in quo, how navigation could or ought to be caniecl (ln lh<'?'e. We think h e cou ld s ta te, in view of these facts, t hat ordinarily "it woulrl be gross carelessness to ruu against the piers."

But fr>r the court's mtimation- " even if any part of that paragraph was legal "-we would have supposed t hat there was no doubt of the right of such an expert to give such an opinion, in 11 case like th is. The authorities abu ndantly bear ns ou t. · It is held that an expert "who was acquainted with the nature and extent of obstructions in t he waters naYiga.ted, and the dangerous character of their navigation, is competent to express an opinion as to the probable cause of the loss of the >essel."-WPstern I ns. Co. v. Tobin, 32 Ohio State, 83. Their opinions are also received "as to the }JOssibility of avoiding o collision by the use of prope1· care, on the part of the officers and crew of one of the vessels."-Carpenter v. Eastern Transportation Compan,y, 71 N. Y. 574; Fenwick v. Bell, 47 Eng. Com. Law, 311. Also, " whether it would be prude nt or safe for any tug-boat, to tug boats abreast with a ltir;lt wind."-· T ransportation Line v. H ope, 95 United States, 297.

Certainly Fink could give his opinion that a boat :could easily run through the draw, or that there was no difficulty In making the passage. If he could give such opinion, he could state that, ordina.rily, it would be the resul t of g ross carelessness for a boat to run against the pier. If he co~ld give such opinion, he could lega.lly state the exceptions to this rule; as, for example, in case of high winds. And he could also state in that event, the "captain should not attempt the passage of the draw "-especi<tlly when, as here, the issue really was, what boats ought to do in approaclling

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and passing the draw. It was a mere genera.l s tatemrnt of an exception to the opinion that a. collil:>ion would be the result of carelessness. That gtatement, too, was the merely giving of a rule of navigation. 'JJ entioning the exc~ptions when his opinion wonl~l not apply, was merely a. mode of stating bis opinion. An opinion, not ill e~a.l in itself, cnn not become so, because it s tates the exceptions to it. It would have been perfectly compete nt for us to bavP introduced, on this issue, all th e sailing rules and regulations prescribed by authority, so far as concerns the duties of vessels approachi ng or pas~·;iug positions like the draw-for one of the issues w-1.s what they ought to do iu such positions-a.ud these rules coulcl not have been· r ejected as illegn.l. Fink states oue of these rules , as mere illus tration oi· instn.llce when the vessel should not atte mpt the passagt>. The cases will be infinitessim<l.lly small iu numbPr, where lHHties can safely introduce any expert testimoll)' , <l-ntl there will always be danger if sueh testimony is to be f:'X d lllled , in a lump, on a genend objection, because some one of t he phases of illustration used does not arise in the partieular

case. As stated, there is an intimation in the opiuio11 that the

whole of Fink's answer was illegal; bnt surely it eould be no more illegal than so rne of the opinions ;tllowetl to be given by plaintiff's experts. For inshwce, Gayle, (Hec. p. 122) tet5tifi.es the channel was" ma de Yery dangerous by the peculiar position of the draw." Guunison lRec. p. 110) testifies that the piers and manner in which the draws open "constitute a great impediment to n;wigatiou, am1 ,,Hhwytt' l~j'e and p1·ope?'ty on sf('C! IIl boo ls passing llwt JIUi,l l. " \Ye objected to this as going to the mPr its of the whole case (56 Ala. 372, and 34 Ala. 473; 1 Greenleaf, Sec. HO). This court, however, disagreed with us. 1f G unnison, after testifying that the bridge constituted a gre;l.t impetliroPnt to navigation, could go further and state that it " 1 11rlunye crl life and p1'ope1·ty on steconboals passing thctl j)Oinf," can it be erroneous for Fink, after st•1.ting that it would be careless-

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ness to str ike tl1P draw, to go fur ther and state the exceptions, ana tell when a captain should not attempt the pn.ssage of t he draw? If Gun nison could s tate that drawbridge and pier, "endangered life and property" on passing boats, Fink could Htate that s teambo~ts passing there would not be endangfrecl except in case of negligence. And such a statement from him, is not illegal, either in itself or coupled with auotlt C' r, when tha t eother is tbe stat~ment of a rule of navigation, as to whon <t bo.a t ought not to a ttempt to navigat"' past the <lraw. The testimony of Fink can not be illegal, if Gunnison's is legal.

l lULING A8 '£0 BAD MANAGEMENT OF BOAT, ETC.

The 2tl direct interrogatory to the witnesses \Villiam l\Iarks, J oicey Marks and Mrs. Buckhalter, required the witnesses to "state an.r facts, wit hin your knowledge, showing unfitness or unskillfulness in the officers or crew of said boat, and if you observed anything indicating that they, or any of the m, were u nder the influence of liquor, s tate it fully and s tate how such influence exhibited itself?" J oicey Marks auswered t he second interrogatory as follows : "I know of nothing, except the bad management in landing at the L og L anding, and running into the timber after they left the landing." On motion of appellee the court struck out this answer, as irrelevant and incompetent (Rec. p. 106).

I n our original a rgument, p. 48, we cited the court to McCreary v. 'f urk, 29 Ala. 2-15, which authority, we contended, " shows the error in rejecting the evidence as to the bad management of the boat." T his court, in its opinion, does not notice this exception, or r efer to it, even inferentially, except in the gene ral wu.y that there is nothing in the other exceptions.

I n McCreary's case, the judgment was reversed, because a non-exper t was not permitted to testify " there was a sufficiency of officers and hands on said boat to run her in the mnunBr in which she was run." Speaking on this point, the cour t said : " The judgment o! o1·dinary pe1·sons having an

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opportunity of personal observation and of £ormin~ a correct opinion and testifyin~ to the facts de rived from tha t observation, is admissible. The effect of admitting s uch opinion as evidence is not to submit to the deci::.ion of a witness a point which a jury alone can try; but merely to assist them in judging of a question of common .'i£'1t8f' as wE'll as of science, with which the witness may re<\Sonahly b e supposed, on a.ccount of his superior opportnnitiC'R for being acquainted with it and forming a cotTPct judgmPnt, to have been more competent to judgE? than they tbems<>lves." 29 Ala. 245.

This witness, J oicey :\J arks, was a passf>nger on the boatsaw the boat when it approached the dn\w-briclgf>, and saw and felt the collision. She was an eye witness to the t ransaction, and could state from her own observa tion and l{uowledge -:>f the fact :,; whether the re was bad manage ment o r not in landing at the Log Lauding, and running iuto the ti mber. This matter was a" question of commo n sense as well as of science," of which the witness might be snpposf>d to bP more competent to judge than the jury.- 29 Ahl. 245. It was for tlw jury to say what the opiuion was wor th ; bu t it was not irrelevant or incompe tent. If McCreary's case is authority, excluding this evidence was e rror.

PLEA No. 28 AS TO JuDGMENT AGAINST OwNEHS OF T HE BoA'r.

We do not comba,t any of the gE? neral princi plE's of h\w stated in tbe opinion, as to the d octrine of estoppel by judgment, or as to the general rule for ascerta ining who are parties and privies. The co urt Yery corrE-c tly s~LJS,

that the test for determining w h etber onP not a. pa rty of record is bound by the judgment in the s uit "is not clE-arly defined by any text bouk or decision we are able to find. "

In general, it may be correctly stated thn.t one is not bound, who has no control of the s uit-110 right to offer evidence, cross:cxamine witnesses, and appe1d if dissatisfied. A party of record, 0f course, hu.s these r igll ts. It by no means follows, however, that one who is iu te res ted in


30

thP snbjt>ct ma.tt«>r of the s nit, though not a formal party to thP rP<'<ml, if IH' :ts~ists in t he prosecutio n a nd trial by h is at torrwys, ean not be bound, because he does not have "~olt• lllltuaw•nH'nt of the case by counsel." 'VA do not understand that t lus cou rt in Tarle to n v. Pollard, 25 Ala. :300, inl<'ntlP<l to m:tke this sole control a tnruiug point in ib; jud~rnen t. 'l'he record th~re it seems, was offered in eYid<•ru·t• in c·onnet.:tion .with parol testimony, to connect part it•s w1 tlt it, <luring the course o f the trial. The court '''1t..., not sJH•aki ng of the s ufficiency of a plea, but rather of tlw PYidt>lH'<' to sustain it. And the report o f the facts of the> <·aH«> Hlrows that testimony was offe red, tha t tbe defendants" in this "nit employed couusel, and asfiisted in the dPfc> ns" of that sui t. " I t was o n exception to this testimony, among other , that the question before the court aro~e.

Tlw C'onrt quotes fro m Calhoun v. Dunning, 4 Dallas, this <'X JH'Pss ion : "It is plain the na me of Calho un is now ornploy<'<l for the use o f Carruthe r s, a nd that the parties arP r<'ally <Lll<l not nominall.v the same in bo th s uits." It sa.n; rmther: " We ar e of the opinion tha t the appl:'llants are l'o/lltr•cf(•d f;O as to make tbem the real defe ndants," &c.

T ho tf'~t th rrpfore, in this case, is whethe r plaintiffs are "(·onHPI'll'll so as to make" them the rea l pla intiffs-wbether t he name of D organ was employed, su far as concerns plaiut iJl''s cotton, for t he use of plaintiff. If s uch be the fad, 1t sctt!Ps the questions whether pla intiff h ad a right to otfpr c>viclenee, !.'xamine wi tuesses, aud appeal. If D organ's uanH' was r<>al ly thP<l for the benefit of the plaintiff, the plaint iff, throug h D organ'!:l a ttorneys, who were the reby mad!' his own, a ud his own who assis ted, &c., co uld offer t·,·icleuc<>, cross-ex;tmine witnesses, and appeal. Was Dorg:tn suing for plaintiff's use as to the def:'trnction of this <'ol to n ? Could he haYe r ecove red judgment ? D organ's suit is a \·en ·t>d to he prior in point of time to plaintiff's, so that t he pl<'l\!liug is s trictly within the rule in Farmer v. l\IcCmw, 31 Ala. 69, in that res pect.

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It is adruittE>d by appellee that Dotgan had thP right to sue for this cotton, unless baJTe<l by !i<>llle aetiou of tiH~ owners before or after snit was brought.-1Appt 1\p's hriPf, p. 17.) The same thing i!-> a<lmitt\·d Ill the pr<'seut opinion. Dorga.n, as to recovery for the cotton, wm; tht> (,.,l,ftt ol tlsP owner aml thE> trustee of this phtiutiff, wltdbPr it dainH' Il Ly subrogation or by contract <Lssigument.-lfall ,\ IJostg ,., Railr<Htd Co .. 13 Wallace, 367-; Jnry & Gillis ''·~f.,\' :\I. R.Y· 111 U. S. 594. A recovery as to this colton wo11ld lllt\'P been for plamtiffs' benefit. Dorgall h;t\ lllg th1' right to sill', and suing appelle:tnt, for this cotton, app<>llaut wonl<l un

doubtedly have been bound by the juagm<>ut, antl con\1l uol

have controverted or litige:tted the tjlH'stion of lia'l.tlity in another suit with plaintiff.

It hns been repeatedly held, the:tt "where a. party has ;t right or recovery over, either bv operation nf law or in virtue of an express contract, be may give notice to the pPr:-.on so respous ible of the pendency of the suit against him, an<l.

if a judgment be obtained without fraud or eollusion, it will be conclusive evidence for him against such JH>rson, upon every f~Lct established by the judgment. 'l'he p<'rson call<>d in has the S<Lme means of controvertiug the ;uhers<> c·laim, as though he were the nomina l and real party on the r<'cord."-I3ender v. Frombeyer, 4 DalJag, 436; Hamilton v.

Cutts, 4 Mass. 349; Kipp v. Bingham, 6 ,Johns, 1:3'1; 7 Cranch, 322; 1 Ohio, ,136; 4 Vermont, 523; Sale Y. Light'o Ex'rs, 4 Ala, 700.

Does it make any difference in the binding force of the judgment against the party so called iu, thn.t he merely cooperated and aided by his attorneys an<l ageut!', wit!; the attorneys of the nominal defendants, but <lid not take sole control? We feel assured that this court will answer, No! The party so called in, if he chooses, can <'XC'r<'ist• the right of managing the case jointly with or in snhonlinatinn to the reconl defe ndant. If h~ choose so to ex(>reisP it, is it not his fanlt that he did not have contr ol'? Ancl if the opposite party is bound by the jullgment, is not he also bou1Hl,


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on eYc>ry principle of justice? Coulcl it make any difference in snc:h a t·a~e that s uch party volunteered to interfere in thl' snit and did not wait for notice which might bind him? W e think not! Wherein, in principle, is the differ<'IH'P bc>lwce11 that cnso and this?

Uonct>cling for the· sake of argument that plaintiff was not hound to tn.ke part in Dorgan's suit, ancl without such participa.twn c:oultl not b~:tve be~u concludeu by lhe judgment, if plaintdr in fact voluntarily come into it, and participated in tlr<.' JH'OSl'<·utiou and trial, is he not as much u ound by the> rc>snlt, as though he had been bound to appear t.herein? Can it uo w be set np as against the defendant in the D<wgan sn ij, who would be bound by the whole judgment therein - thongh most of the recoYery would have been for plaintiil"s hc>nt'iit-th~:'tt plaintiff ought not to be concluded by the> jntlgmc>nt; since plaintiff, though he aided and participatPd in thl• trial, &c., by his a ttom eys, did not have full eoutrol and ma nagen ent of it, or because he voluntarily camP ir.to the cas<'? Can not one, not a party to the recorcl of a suit partly for his benefit, become "so connected" as to mah lrim ;t rpaJ litigant therein without having entire manag('ttwnt of tire snit? T o hold o tlterwise is to destroy one of tIt(· moc.;t l>enP(icial applica.tions of the la.w estoppel.

It tlo<'s not follow, tlwrefore , in a case like this, tha.t the allt•galion thaL the plaiutiff "b~(ore and at the time qf said suit or said D organ aitlecl a.ud pa rticipated with said Dorgan i11 lh <> JII'O~Nulion ttncl lrial of said suit of said Dorgan," i,; insnllit"iPut, n.s ffi<"ttter of Llw to bincl him, when h e thus adt>tl i n a litigation, where the plaintiff was really his trust<>P, ;wtl t hP large portiou of the recovery would be for his lu ... netit. Th<' plt><l. prt>seuts the \ery ca.se mentioned at the top o f t>age l:~ in thP opinion-of a suit "at his instance or for his U<'twfit." If an agt>nt, without aut hority, brings snit to recover thP principal'~ property, and the principal aids aml a"!-lists hefore and at the trial by his attorney in such suit, t>Ye rybody would say he made the suit his own. H e re the c,t rric> r <lid have authority to sue for the benefit


l~.- . u ,··., t•

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of the owner ; and the owner not only did not disasow th~ suit but aided and assis ted in the prosecution and trial. Is it possible that he did not thereby make it his own snit?

• J ay v. M. & l\I. R. R. 65 Ala. 116. We do not find it necessary in this discussion to go into

the learning as to what constitutes privity, and the difrerent classes thereof. ·

"No man can be permitted, ~fter adjudicn.ting n. matter by his trustee, to disregard that adjuclication."-Pcterson v. Lathrop, 34 Pa. State, 223 ; Calhoun v. Dunning, 4 Dallas, 120. See where a p_arty was estopped by a judgment to which be was not a party of record, in less plain cases than this.-L anriis v. H amilton, 77 :Jio., 551, and Stoddart v. Thompson, 31 I owa, 80. By assisting in the JH"OS~cution and trial of a suit which was for plaintiff 's benefit, the Ins urance Company voluntarily made its rights de,Jenrlutl upon those of plaint~{!' in D organ's case.

If plaintiff had remained aloof from that suit, it might be questioned whether he was in any senRe in privity with Dorgan, the ·bailor of the goods. P laintiff could and did make such privity with D organ, by its own voluntary act~, and could and did subordinate its rights or make them de· pendent upon the result of the D organ litigation. This he did to 1·ecove1· in that suit, the ve1·y tltiny IU' sued fur hel'c'. To use the language of the books, " they are irlntt!fiecl 1cith him in infeTest; and wherever this identity is !ouud to exist, all are alike concluded."- Greenleaf on Ev., 14 Ed. Sac. 523. It is a general rule that in all cases the record of the jmlgmeut is evidence in suits where the r ights of tht> pa,rties are dependent upon those of the parties to such judgment, and snch depfndfnce may be shotcn by evidence aliumle.-Key v. Dent, 14 Mel. 86.

F anner v . .llfcC?·aw vi1·tuolly decides tbere is }Jrivity brhrt'Cn

bailo1· and bailee in such a suit as this, even {! the formN does not pa1·ticipate.

It has twice been decided by this court that recovery and satisfaction in the carrier's prior suit for injury done the


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good!:', will hnr the owner's action ag:tins t the wrong-doer. Farmer v. ::\IcCrn.w, 2G Aln. 209 ; s. c., 31 Ala . 664. How can this he, if there is not i n such s uit, privity b etween bailor <tnd bailee ? If the re is no privity between the m in • t his s nit, how ea.n sati~faction to th e b ailee oper ate as paymr nt to t he bail or? If t here is n ot privity between bailor and l>itilce in tlla.t snit, payment or s:ttisf<tction to the bailee is pa,Ym.rnt to <t .• troll(f<' i". P ayment to a s tranger can not extinguish the r ight of t he true owner. On principle, i t wouh1 seem that both these cases really sus tain G reen v.

Clar k, 2 K ernnn, 353. Tbe law c;re]\R to 0nd litigation and to prevent double

Yex tti .. n. I s tlH• IMI f ,.,c,sor compelled to rnn the g<tuntle t of two tn ah; a tHl jn(lgments to be free frum :t liability which i:'; <1-iser tetl for the use ·of the b ailor and can be recovered in the first !:>ni t ? Can the od f easu,· be compellecl to litigate a lial>ility, a t t he s nit of one who has the righ t to s ue for , reco' er, a n(l <·nerce satisfaction of a demand for the use of the b ai lor, so that an acherse judgment to t he fol'f .fPo.<;or is for the h ene£t of tbe b ailor and foreve r thereafter con clncles th0 lol'l f<'oso ,. from d isputing the liabili ty as against the bailor; and yr t in event of j udgment i n th e tm·( feo.sor's fann·, it will he worthless against f s.uch demand, a ncl leave him subject to suit by th P- bailor upon the identical t1emand litiga.tetl in hi~ hehn.lf in s uch suit? T bat th e to1·t je((.<;()r is b oun<l by the judgment against him as to t he value of t he b a ilor 's goo1l s in thr ba.ilee's suit does not ad mit of doubt; sine·(' ·the hai lee hns the righ t to s ue for and. recove l' it, and coerce sat isfac·tion fn, m the fad f easor. If t he lo1·t f easor. can not sP.t up the j udg me nt in his favor, i n th e bailee's s uit, against the ~a.ilor's action, the bailor can t wiee liti~ate t~e matter wi th the fm·t fea.sM. This is contrary t6 tbe w·h ole course of the common law. In one of. t he trials th<\ juclgment, if adverse, will conclude t he for t feasm· as to t1'1'e liahility to th e bailor, b ut if in the toTl j<'a.so?·'s fn.~or i t will b e no protection against the ~ailor ? This is "two b i tes a t t he ch e rry." _ _,. ·

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R ule dfffe?·en f, in .~ome 1·espects, as to v-Jwt is 1'<'f!Ui;wl to bind one inle?·estedjo1· whose use suit is b1·ougld, from othu coses.

No matter how long the bailee's prior suit may drag, the to?·t j <'asor can not compel the bailor to come in, or to sue, or to take any Hteps whereb y one judgme nt will determine the tor·t.fmsor's liability. If our contention is not correct, be must wait for two trials to obtain a judgment set tlinr. liahili ty as to a demand litigated, and entering iuto the judgment rendered, in the firs t suit. Can the bailor stn.nd idly by and knowingly suffer his claim to be acl ju¢J.icatecl in the bn.ilee's suit without a word of objection, and not be bound thereby? On reason and principle, and in view of the policy of the law to end litigation and prevent double ' ex..c'l.tion, it would seem that this ought not to be permitted. It would seem a still stronger reason for holding the bailee concluded, if he knows of and permits the bailee's prior snit to proceed to judgment, and participates in the prosPcntion and trial on the meri ts. H e thereby submits himself and his claim to the jurisdiction and judgment of the cour t, litigates it with his adversary on the merits, and must be concluded by the result. In such case he has inter fered in the s uithis acts are a voluntary submission to be bound-he ratifies the act of his bailee or agent in bringing t lH\ snit for his benefit, and thereby makes it his own suit. Any deliberate act of participation in the prosecution and trial of the sui t, knowing it is brought for his benefit, is a ratifica-

. tion of the s1.1it·as JJi.s own; and in t hat view of the case, the extent of control exerciseu is immaterial.

Nemet ty v. Naylor, 100 N. Y., 562, holds that, althovgh the plaintiffs in both actions were not the same on the record, yet the j1,1dgment concluded the defendant in lt subsequent suit against. him. by a third person, on proof that the plaind ff, who sued in his own name, acted as agent and by direction of such third person. See, also, Pico v. Webster, 12 California, 140, asserting the same principle, where one who claimed to be agent sued fbl: coin in his own name,


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and recoYered nominal damages, because he did not show tit le. The defendant was not allowed to set up this judgment a~ainst the true owner suing for thE> same kind, because, though the proof showed the agency, there was no proof th<~t tbe owner knew of or authorized the suit.

After diligent Rearch in the capitol, we can not find a single case where the prime owner or beneficiary in the suit, who, in any wa.y assented to the bringing of t he s uit or its maintenance-such as aiding in prosecuting i t- was not held bound b~· the judgment. Tbis, on well known principles of ratifiC<'-lion and per haps election. If plaintiff in this suit be.fm·e it was brought, as well as after wards, aided in the p rosecution and trml by its attorneys, &c-n.nd plea avers it did-it was both election and ratification to make the suit its own suit. rr he facts• a,;erred showing as m-~tter of law such ra.tification and election, the plea made the case of a

privy or real party.

The few cases, we have found, where any deliberate iutermecldliug with the suit, such as voluntarily being a witness, or appearing as an attomey for the defendant, &c., was held not s ufficient to conclude t he intermeddler, were cases where the suit was not brought for their benefit, and where they aided dc.fnulii Jtfs and resisted recovery. In such cases mere acts of fricudly assistanc~, equivocal in their intent, might not denote an intention to s take such iutermedcller 's rights upon the event of the litigation, whereas the· same acts in a sni t by the plaintiff for their use, would necessarily be an election to mtify the suit and make it their own. Such an election once made cannot be withdra,wn.

Resisting recovery is by no means a ratification of the suit, ·while aiding in i ts prosecution is. This distinction will clear <lnY seeming conflict in the authorities, and none of them properly consitlered, militate against our views ..

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P m·tif'ip((fion, ond Uorle ~ 25g;:;, n·quir" 1.loi11lUl' f,rn· ' " hr " . l l " . 't " t II 1 " . l . con.<;u er e1 a .JOUt par y on 1f' rrcot'l 111 )!11·!JO n s

suit.

If a suit prosecuted to judgment ou the merit<;, is brought dirt>ctly for the use of another, an<l he ratifies lhe prosecution for his benefi t, any facts n.YE'l' J'Pd whi<·h , as matter of la w, show such ratification, pres<'nt a. good ph'tL in bar. We t hink s uch a case q uite c1itferent from one of a. party whose interest can not be bound hy th<' suit, (which is not fo r his benefit.), unless h e appears n.ntl tn.hs control, &c. I n the fi rst, acts of the interested p arty may be a ra.tification, when t hey mi~ht not be evidence of s uch control an<l manag ement, as would constitute him ~1 pn.r ty, if thP s uit was not brought d irectly for his benefi t. One against whom a liability may be fixed if he volunbnil.v appears as a defendant, obtains no advantage by ~ta.y ing out if the s uit p roceeds without him; while the party for whose use the suit is brought, by remaining ou t gains an admnta~e, if Ills remaining out, will enable h im to a,•ail himself of tlu> judgment if favorab le and avoid it if unfavorable. H ence the difference i n what may be a good plea. io one case and not

in the oth er . In other words, acts in connection with ~t trial, may

a mount to ratffi.cation of bringing the snit for one's use, n.ncl thus bind by the result ; when the ~:>arne a.cts, iu a suit not for one's benefit, when interferer is not n.mena.ble to thE' doctrine of ratification, may not bind; l';ince of Lhemse!Yes they do not sh ow such actual control, &c., as to make the interferer a real party, in the absence of any other connection

with the s uit. A party notified of a suit which will r esul t in }L h'tbility

over against him, and not appea.ring, or a.ppearing antl defending, is bound. Why does not the conYerse o f the proposi tion apply,-that a par ty knowing of a. suit, in which he ip directly interested , which i:; prosecuted for a. H'<'OYery mainly for his benefi t, and making no objeetion but assis ting in the prosecution and trial, is n.l~:>o bouml by the judg-


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ment? Such a suit though waged in the name of another is re~tlly his suit-he is a real party, though nominally not a party to ti1e record. We insist where the plaintiff bas the equal right to sue in his own name to recover a demand for the use of another, and can have judgment, A.nd thus coerce satisfaction from the defendant, for the use of a third person, and conclude defendant by judgment of record from disputing such liability, a!'; against such third person,-that these powers ~tnd rights in the plaintiff, especially when such third person "aids and assists in the prosecution and trial by his ~tttorneys and agents," constitutes legal privity, at leas t, between them so as to bind the plaintiff-the person for whose use he sues-as well as the defendant, by the judgment.

Again, when there is participation in the trial, by one who is entitled to partake of the recovery io a suit like this, ipso facto be must be "considered" a "party on the record," at leas t § 2595 of the Code so command8.

In view of the principle on which the decisions in Farmer v. McCraw, .r;upm, must rest, i t cannot be that the Supreme Court intended to decide, by the use of the words "recovery and satisfaction," that the bailee's prior suit will bar the owner's action, only when there has been ~1 judgment in . favor of the carrier and payment to him.

The true meaning of those decisions is, that any judgment in such prior suit of the bail~e, (where be sues to recover the owners damages, as well as his own) which legally discharges the tort feasor from liability to answer the baillee, will bind the bailor also.

Bearing in mind the allegation that plaintiff b~fore rmd at the time of Dorgan's suit aided ~nd participated in the p1·osecution and I riitl thereof by his attorneys, and that the suit was one that could lawfully be brought for his benefit, unless he objected, we respectfull.Y insi8t, that the averment, especially under our system of pleading, was plainly the averment that the prior suit of the bailor was n.t plaintiffs "instance and for his benefit;" the very case in which the

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opinion admits that the j udgment ag:unst t he bail<'e wonld bind the bailor. The Ins tmmce company could not do such ac ts without making the s uit its own s uit, and ident ifying itself with D organ, so far a<; concerns t he dE>!:!tru<::tion of the co tto n by the collision with the pier t he identical thing for which it is no w s uing for here.

We will not go over the a rgument to show that D organ s ued for th1s cotton in his suit . 'I'he allegabon Qf the plea, which on de murrer is t ruP, as wPll as tbe complaint in that suit, we think incontestibly s how that hi:; suit was expressly and skilfully framed to recowr, a.nd authorized a r ecovery , for the destr uction- of th is cotton. X either do we think it necessary to ta~e up time with those grounds of d e murrer which objected that the ple<L shows the injury compla.i ued of in that s uit is different frum that here. If we are capable of understamhng the nse of word::;, th"e plea did s how that the same i.r~jw·y was compbinell of in both cases, and if there were doubt on i ts allegations, the exhibit to the plea dis pellell the m.

Pleas like tlti.s not const·ruecl more s/1 ictly than ulltN }Ileus in ba,-.

Though there is a.n intimation perhaps, we do not unders tand the opinion to decide tbat tbe s~l.tne strictness is re-

. quired in pleading the judgmen t as is requisite in the class of purely technical es toppels, which <We sometimes denominated "odious." Such defenses as bere attempted <U'e often d enominated "meritorious ;" since they tend to an end of litigation and preven t d ouble vexation. \Yhen <l. former judgment i::; set up in bar of an action or as having determined the entire merits of the coutroYersy, it is not required to be treated wit h any greater strictness than any other plea in bar, or any plea in avoida nce of the matters alleged in anteced ent pleading of the opposite pa.rty. Gn1.y v. Pingry, 17 Ver. 419; P erkins v. W alker, 19 Yer. 14:4: ; 1 Greenleaf on Ev., 12 Ed., 566. This was the rule at common law, and the strict characte r of common iaw pleadings,

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as the court welJ knows, bas been materially changed by our Code. Pleadings are required to be short, and no objection is allowed for want of form ; and if prolix may be stricken out on motion. It is expressly declared that demurrers cannot be allowed, "but for matter or substance which the party demurring specijits, and no objection can be taken or allowed which is not distinctly stated in the demurrer."-Co.de, § 2690. "The construction tuis statute baH received conforms to its language ; that when a demurrer is interposed the court can not consider any other objection than that specifically stated.-Eads v. Murphy, 52 Ala. 524. H owe1er insufficient the pleading may be iu other respects, if not obuoxious to the pw·ticulm· objection assigned, the demurrer must be overruled.-! b.

Whether plaintiff aided and participated, etc., was a matter of substance-the omission or defect in not circumstantially stating the manner of such participation, was a formal defect. The demurrers did not distinctly state or specify as to ei ther matter. If raised at all, it is by mere inference or argument, which t he s tatute forbids. .

The first ground of demurrer is, that th e plea does not show that plaintiff was party or privy to the Dorgan suit; (2) that the judgment does not bind or conclude plaintiff or the owners of the cotton; (3) that the plea shows that the injury complained of in Dorgan's suit is different from that here complained of.-See Record, p. 92.

It is well settled in this court that a party, by f~iling to raise an objection clearly, admits the s ufficiency of the plea, when the objection if taken would have bPeo fatal to it.

The specific grounds of demurrer assigned, really amount to this (since no objection is taken to the failure to state the

~

extent and manner of participation, &c.), that aiding and as-sis ting, &c., no matter what its extent, can not ma~e the owners of the cotton parties or privies. The first and sec-

. ond pleas in lega.l effect and substance are mere geneml demurrers. Their averments, to state them properl.y, aJ;Dount to no more than " that the matters and things set up in the

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plea (without specifying the particulars wherein n.ny of them were defective), did not show such a sta te of things as could make plaintiff a privy- although be did participate."

The ple:t could not be bad, for failing to par ticnlarize t.he manner of participation, when that objecti r>n was not raised di8tirwtly; and we should have bben allowed to go to the jury with proof to support it, so fa.r as any of the spe:fic grounds of demurrer is concerned. The pnrposf' of the statute in requiring the objection to be distinctTy s tated, is tbu.t the pleader may have opportunity by amE-ndment of curing the defect so poiuted out distinctly.

The specific ground upon which this court sus!:<tins the court below, is in substance that the character and particulars of the participation are not sufficiently s tated-an objection which, if raised by the demurrer di8linctly, could easily have been cured by amendment in the court below. The· statute was intended to prevent such results.

We earnestly insist that the averments of the plea sufficiently show that .the suit by the bailee was at the instance and for the benefit of the bailor; that be so conuected himself with the suit as to be bound. We insist that even if this were not so, that the plea can not be held defective for not setting out the manner of the participation, when that objection was not distinctly raised by the demurrer. . .

SECTION 683 OF CODE REQUIRES T HIS COUHT T O HEYERSE FOR

ERROR IN CHARGE AS TO BURDEN OF PROOF.

The opinion concedes that Charge No. 5 misplaces the burden of proof on the question of negligence, and that this is so "both upon principle and reason."

We again invoke the performance of the chdy enjoined by statute, Code, § 683, especially as the question is one as to a rule of proof, in which no one can acquire vested rights, and cannot become a rule of property, and therefore is not within the reasons of staTe decisis.

It is said the rule as to the burden of proof is settled otherwise by Railway Co. v. Chambers, 79 Ala. 338. If


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tha t rlecision had been made on a former ruling In this illentical case, the court b elieving it to be nusouud " both on reason <~nd principle," would be bowul to disregard it 11 otler S<'ction 683 of the Code. Where a case is opposed to " reason :wd principle" and relates to matters which can not become a rule of propert:v, &c., the most cautious and conserv<ttive courts , under such circumstances generally overrnle the <'ase outright; none fai l to declare tha.t it shall not be extended, bnt. mus t be strictly confined as <tuthority to the precise c;ta.te of facts there involved.

In Chambers & Abercrombie, supra, th e collision was on lund; it was not wi th a well known stat ionar_y object. The obs trnction was not expected where it was found. Those in charge of the rnoYing train had e\ ery right to presume that t he obsbtclt> would not be there, a nd were not required to exercise the caution requis ite in approaching a known obstacle, at a place where it was known that it would require skill and care to pass it . Besides, in that case, the train had but one tntck to ru n on, and its pathway was immovably fixed between the two rails from which it could no t eli verge, no matter what was the obs truction. Here the obstruction was not in the bea.ten path, and the cre w expected the obs tacle and could go around it.

Where a funda mental error bas been committed against a par ty, by a ruliDg unsound, "both on reason and principle" wbich may have entailed on him an unjust burden, and. the judicinJ mind avers that the application of the rule to the facts, is without reason or principle, it is right to make baste to depar t from decisions which provoke such results. L ess than this is depriYation of property without "due process of law:'-for a sui tor can not be deprived of any right exc€'p t by virtue of the law, legally applied. If applied contrary to " reasou a ud principle," the courts fail io their great fun ction.

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C ONSTRUCTION OF THE A CT OF Co~GRESS.

We are sensible of the force of ita, srripto lt>.r. WhHe the identical thing forbidden or commanded is ex pressed in unmis takable teems, leaving no room for doubt, tbere is no room for construction as to what the legislature intencled, even though the intent may be vain and foolish. Unless the Constitution forbids, thG legislative power, especially in a grant, may annex a vain and ·foolish condition. If it. has done so, the uselessuess of the thing cornmauded is no excuse.

On the other hand, if the words or terms employed, taken in connection with the declared purpose, leave :tny ottice for construction, t he courts will never presume a legislatiYe intention to require a useless thing; and wi ll always amid this by adopting any ot her reasonable cons truction, fairly consistent with the objects of the statute-though in tl,e very teeth of a lite.ral constru~tioo.

If the testimony of t he eminent expe1 ts for appellant, that approach piers wer e not needed- that there was protection witL out them-t hat they would have endangered the safety of vessels, and unnecessarily impeded navigationwas true, a vain and foolish thing was required, if it was intended tha t the protection must be worked out only by means of piers. I s there s\lCh intention in the s tatuedoes it j01·ce that ~onstruction ? If the statute had s topped after declaring, "and the approaches to such dmw shall be protected by piers," we admit there would hardly be any room for our contention. But the sta tute does not s top there. It adds : "or other means tlwl boa,ts may euter the draws in safety." It does not say piers .or other meaus ; but "other means, that boats may enter in safety." The other means arE;~ q ualifi.ed by what follows, more than by what precedes. The statutt~ shows on i ts !<tce tha,t the intent is to have "other means" (uot necessarily like means), that boats may enter in safety. If there be other means that boats may enter in safety, the law is not so written as


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to forbid them; especially when piers are va.iu and useless. Tl!e doctritw of ito .~criJ>fa le.r ne,·er compels a construc

tion requiring a. vain and useless thing, unless the terms n.rE' so cast-iron a.s to preYent us from b<'lieving that the lPgislatnre did not intend any thing else; that iuteuLion being so directly t>xpressed as to give no room for construction. In view of fa.cts which Congress knew and the courts are bonod judieia.lly to know, it is h<trd to come to the conclusion tha.t Congress intl3uded that pit!rs should be the u1t/.tt means to protect the appro<tches to the draw. The testimony shows tlw.t the top of the draw is from forty to fifty feet aboYe the ordinary ~tag<=•s of the water. This court knows, ancl Congress knew, that the Alabama river was sn bject to freshets ·which sometimes bring the stream up to the top of the draw-for insta.uce, the freshet of April 1886, and that there are considera-ble freshets every spring. To put up piers, a.nd them ouly to protect the approaches at all stages of the water, would I"equire them to be as high as the draw ; ancf to construe the act as compelling them would be to provide for erecting other obstructions in the riYer above and below the draw. There would be in fact three obstructions, instead of one. For how are these other piers to be protected, if the conditions of bank and stream do not protect them as well as the main pier?

Indeed, pier approaches, as the testimony shows, are found only in tide water, where there is very little rise, and generally strong action of the winds, and where sail vessels must pass; which having no independent motive power may strike against the draw,-and hence, piers are req uirecl there on which they can rest. In tide water this can only be accomplished by these identicnJ means. In running streams the same means will be useless. There are no sail vessels on the river above this city·, and there is no change in the direction of th<> current, immediately above or below the bridge, so that boats comiug down it could not control their direction, n.nd hence be liable to strike the draw pier. Congress left some discretion in the engineer as to

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means, and does not declare H pressly that they sha.ll be means like piers, but only that the:y shall be mf'a.ns for safety of approach to the draw. When iti-. prime objec·t was to secure safety for vessels, its statute ought not to be held to compel means which will defeat its object-if it be J>OSsible by construction to avoid it. If nature'H means are better than those of man we cannot impnte to Congress au intention to prefer one to the other. In E>i thE>r evE>nt the real mode-other safe means-prescribed by Congres~ is not changecl.-See Kirby v. The U.S., 7 Wallace, 487.

CONCLUSION.

We earnestly request the court to re-examinE> its opinion in the several respects herein argued. Some of them were not even noticed or discussed in the opinion. It frequently occurs that in writing reasons for an opinion, or combatting in writing arguments against it, one becomes convinced contrary to Lis first view. This high court Las not nnfrequently, of its o'vn motion, overruled its own dc:cisions on matm'er reflection. Our appeal from this decision to the court which rendered it, is evidence of the respect entert<tined for the court ; and howeveT biased we may ha,•e become as

• couusel, or how far that bias may misl<'<td our convictions, though struggling against it, we feel assured th;tt the fact that the court has ex pressed its opinion, will not bias it in giving due consideration and weight to the a.rgnments now addressed to it.

Respectfully submitted, Taos. G. J O).ES,

J. :M. FALK:\ER,

Alfon1eys fur ApJJ, llant.

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[~r ,Su~remc Ql:nurt of ~labama. DECE:M:BER TER:M:, ~884.

J. R. ADAMS, Appellant,

vs.

\VILLIAM D. SAYRE, Appellee.

PETITION FOR REHEARING, BY GUNTER &. BLAKEY,

ATTORNEYS FOR ADAMS.

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