96 So. 64 | Ala. | 1923
This is a suit by J. C. Longshore against the Alabama Great Southern Railroad Company, a corporation, for damages for the conversion of a bale of cotton. It was commenced in the justice of the peace court of John C. Anderson in De Kalb county. Judgment was rendered by him in favor of the plaintiff for $84.62, the value of the cotton. The defendant appealed from this judgment to the circuit court. There it was tried de novo before the court without a jury, and under the oral evidence the court rendered judgment for plaintiff for $79.18. The defendant duly excepted to this judgment by the court, and prosecutes this appeal therefrom. The complaint was amended in the circuit court by a count in Code form No. 24 (Code 1907, p. 1199) for the conversion of one bale of cotton on or about November 15, 1920. The defendant pleaded general issue to the count.
The plaintiff owned a bale of cotton, numbered 4778; it was placed on the cotton platform of the defendant on November 15, 1920, for plaintiff, together with 49 other bales. This bale (No. 4778) is the one involved in this suit. Homer Nance, agent of plaintiff, went that day to get bill of lading for the 50 bales, and the bale numbered 4778 could not be found, so defendant issued a bill of lading to plaintiff for only 49 bales. At that time there was a bale of cotton on the platform numbered 4678. It belonged to one Bartlett, who had delivered to defendant 50 bales of cotton, which included the bale numbered 4678, and received bill of lading for it. Bartlett's cotton, 50 bales, except this bale, had been loaded by defendant from this platform into cars. This bale (No. 4678) was still on the platform the next day. The agent of the defendant, who was loading and superintending the loading of Bartlett's cotton, was there at the depot, and the cars with the cotton were there. The court, over objection of the defendant, permitted in evidence this conversation between Homer Nance, plaintiff's agent, and Robert Franklin, defendant's agent, in charge of loading the cotton:
"[I] made complaint to young Robert Franklin, who was in charge of loading the cotton down there. He had a crew of hands loading the cotton. At the time I was talking to him he had this car loaded. I said to him: 'You have made a mistake, and left 4678, and took 4778, in Bartlett's shipment. You have my bale in there. Let's unload the car and straighten it out right here.' And he would not unload it. He said he would not unload it, and the next morning I tried to get him to unload it."
Robert Franklin was at the time loading cotton for the defendant. He had at this time loaded from the platform all of the 50 bales of Bartlett, except this bale numbered 4678. The defendant did not load cotton from the platform until the bill of lading was issued for it. Bartlett had bill of lading for his 50 bales. All of plaintiff's 50 bales had been checked, except bale No. 4778. It had been placed there that day. This bale of Bartlett's, numbered 4678, was on the platform that day, and there on the next day also. The evidence tended to show 50 bales had been loaded in the cars for Bartlett. The plaintiff's cotton, 50 bales, had been checked. All were correct, and there, except bale No. 4778. The bill of lading for Bartlett's 50 bales had been issued and delivered. The numbers of the bales, 4678 and 4778, were similar — the same except one figure. The 100 bales had been on *229
the same platform, and the circumstances and surrounding facts reasonably indicated that bale No. 4778 had by mistake been placed by defendant in the car as the property of Bartlett, and bale No. 4678 left out of the car on the platform by mistake as the bale of plaintiff. The conversation was almost contemporaneous with the facts and circumstances indicating the alleged conversion of the cotton by mistake. They were all closely connected, and tended to illustrate it. The conversation was relevant to the issue in the case. It formed a part of the res gestæ. The court did not err in overruling defendant's objections to it. B. A. R. Co. v. Campbell,
There are proven facts from which the court could fairly and reasonably infer that the bale numbered 4778 of plaintiff was loaded and shipped by the defendant as property of Bartlett, instead of bale numbered 4678 owned by Bartlett, and in this way the bale was lost to plaintiff by this act of the defendant. McMillan v. Aiken,
The witnesses were examined orally in the presence of the court. His finding of facts is the same as a verdict of a jury. His opportunity for observing them and arriving at the truth of their testimony is superior to ours, and his judgment should not, in our opinion, be disturbed in this case. It is supported and sustained by the evidence, and by the fair and reasonable inferences that may be drawn from, and that are consistent with, the proven facts. Christie v. Durden,
We find no error in the record, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.