Brent v. Baldwin
160 Ala. 635
Ala.
1909
Check Treatment
DOWDELL, C. J.

The fifth count of the complaint, as amended, was not subject to the demurrer interposed. As amended, the count charged negligence as follows: “Plaintiff avers that the damages sustained by him as aforesaid Avere proximately caused by the negligence of the defendant in this: The defendant, or her duly authorized agent, who had control of said building, had knoAvdedge that said building was weak and poorly constructed, and incapable of standing up under a heavy load, and negligently rented said building for warehouse purposes, knowing that the same Avas unfitted for said purposes, and that as a proximate result of the use of the building for such purposes it was liable to fall. And plaintiff avers that as a proximate result of the use of said building by the tenants of defendant, to whom it was rented as aforesaid, for such warehouse purposes, said building fell and damaged the plaintiff as aforesaid.” The objection taken on the demurrer is the failure of the complaint to negative negligence on the part of defendant’s tenants as the proximate cause of the injury. This was defensive matter, available to- the defendant under proper plea, and not necessary to the sufficiency of a complaint charging injury to defendant’s negligence. j

*640' The second assignment of error on the record is as follows: “The trial court erred in sustaining plaintiff’s demurrer to the fourth, fifth, and sixth of defendant’s pleas.” The appellant can take nothing by this assignment, if the demurrer was properly sustained as to any one of said pleas. It is a single assignment, and cannot be good in part and bad in part, but to be supported it must be good in whole. — Western Ry. of Ala. v. Arnett, 137 Ala. 425, 34 South. 997. The fourth plea, as a plea of contributory negligence, is bad for indefiniteness and uncertainty. The averment that “the plaintiff failed to take such precautionary measures to protect himself against injury as a reasonably prudent man would have taken under the like or similar circumstances” is but the statement of a conclusion of the pleader. It does not state as a fact what precautionary measures, if any existed, that the plaintiff as a reasonably prudent man might have taken to avoid the injury. For aught that appears to be contrary there was nothing that plaintiff could have done to protect himself against injury. If there was anything that he could have done to protect himself, it is not shown by the plea. This plea was bad on demurrer, and consequently the assignment of error is unsupported. We are not to be understood as intimating, in considering only the fourth plea, that the others are good. As to- the other pleas we intimate nothing, it being unnecessary to the determination of the case to consider them.

The negligence averred in the second and third counts of the complaint was the unsafe construction of the building. There was evidence that showed that the building that fell had been practically destroyed by fire before that time, and that the walls used in the construction of the building had been damaged and injured by the fire. In this connection the evidence sought *641by- tbe question to the witness H. S. Breeding was relevant, and there was no error in overruling the objection to the question on the grounds stated.

The fourth assignment of error unites in the assignment two separate rulings of the court, and unless both are good nothing can be taken by this assignment under the rule stated above as laid down in Western Railway v. Arnett, supra. It is plain that no" error, can be predicated on the action of the court in overruling ' the first ■ question to the assignment. The question was: “I will ask whether or not you told anything to the architect about the character of the plans of the building tó be furnished.” The trial court was not informed as to what the defendant expected to elicit in answer to this question. ’ It cannot be determined from the question whether the answer would be material or not. The materiality of the answer not being disclosed by the question, the trial court cannot be put in error in sustaining an objection to it.

There was no error in excluding, on plaintiff’s objection, the copy of the lists of damaged and undamaged goods. The rule is that, before secondary ■ evidence is •admissible, the absence of thé primary or best evidence must be satisfactorily'explained. In the present instance the predicate for the introduction of the copy offered was not sufficient, as showing a loss and inability to find and produce the original. Moreover, the testimony of the witness Martin, which was not disputed, showed the lists offered were not a true copy. He says: “The lists were compiled from the book, and were not an exact copy of what -was in the book, but'only a summary.” The “copy” offered, being only a summary of the originál, was incompetent. — Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54.

*642It is insisted, by appellant that the general affirmative charge, as requested, in writing, should have been given, and that in its refusal the court erred.. This contention is made upon the theory that the alleged injury is alone attributable to the independent contractor. There is no evidence that the building was not constructed in accordance with the contract; but, on the contrary, the evidence is the other way. The contract called for what was done. The principle stated in the case of Chattahoochee & Gulf R. R. Co. v. Behrman, 136 Ala. 508-511, 35 South. 132, 133, is applicable here. It was there said: “The general rule is that all parties participating in a wrongful act, directly or indirectly, whether as principals or agents, or both, are jointly and severally liable in damages for the wrong done, where injury results. And it is upon this principle that the owner or proprietor is liable for the act of an independent contractor, .where the contract itself calls for the doing of the act causing the injury and damage, and that act is done in pursuance of the contract.”— Alabama Midland Railway Co. v. Coskry, 92 Ala. 254, 9 South. 202. “If a building is constructed by the oavuer, or through his direction, so as to be insecure and unsafe and of such inherent weakness as to fall Avithout external or internal forces acting upon it, he cannot be relieved from liability for injury thereby caused to a person lawfully in the public highway adjoining, on the ground that it was built by an independent contractor.” —Wilkinson v. Detroit Steel & Spring Works, 73 Mich. 405, 41 N. W. 490. The principle stated in this case sustains the proposition that, where the building is constructed according to the contract, the owner or proprietor cannot shelter himself under the doctrine of independent contractor. A number of cases will be found cited in brief of counsel for appellee in support of the *643doctrine above stated. The court on the theory urged in argument committed no error in refusing the general charge.

Charges 2, 3, and 4, requested by the defendant, were bad in form, and for this reason, if m other, were properly refused. — L. & R. R. R. Co. v. Sandlin, 125 Ala. 585, 28 South. 40; Dorsey. v. State, 134 Ala. 553, 33 South. 350; Goldstein v. Leake, 138 Ala. 573, 36 South. 458.

The fifth charge requested by the defendant ignores the phase of the case made by the fifth count of the complaint as amended. Besides, this charge does not define negligence, and leaves the jury without a rule by which to determine whether or not the defendant had been guilty of negligence in constructing and maintaining the building.

The sixth charge was properly refused. There was evidence tending to show that the plaintiff was damaged by the falling of the wall on his property, and, whether the defective wall was the cause of the collapse of the building or not, it was still open to the jury under the evidence to find that the falling of this defective wall was not the proximate cause of the injury to plaintiff’s property. Moreover, the charge was not free from misleading tendencies.

The seventh charge, like the fifth, ignores the phase of the case made by the fifth count of the complaint as amended, and this was sufficient reason, apart from any other, to justify the court in its refusal.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.

Simpson, Anderson, and Mayfield, JJ., concur.