Electric Lighting Co. of Mobile v. Rust, 131 Ala. 484

Electric Lighting Co. of Mobile v. Rust

131 Ala. 484 | Ala. | 1901

DOWDELL, J.

The appeal and cross-appeal in tin’s case are taken from the decree of the chancellor rendered on the report of the register. The report of the *489register was made on a reference held under the decree of this court rendered on a former appeal in this case —December 23, 1899,- wherein it was decreed as follows, viz.: “It is further ordered, adjudged and decreed that the complainant ha.ve and recover of the Electric Lighting- Company the reasonable value of the use of said property during the time of detention by the Electric Lighting Company, and the register of the chancery court of Mobile is hereby directed to hold a reference and ascertain the reasonable value of the use of said property during the time of its detention by said Electric Lighting Company, and report his findings to- the next term off the -chancery court of Mobile county.” To the report of the register made under this decree the appellant here — respondent in the court below — filed exceptions. The complainant did not except. The chancelloa- overruled ail of the respondent’s exceptions, ■save those a-s to the finding of the register being excessive as to the reasonable value of the use of the generators and switch boards. 'These exceptions he sustained, and without further reference, proceeded to ascertain and did ascertain and -decree a smaller is-um than that reported by the register, and this action of the chancellor constitutes the ground of the cross-appeal, and is the sole error assigned by the cross-appellant. As the view which we take off the -case will compel a reversal off the decree and a reference to the register, we deem it unnecessary to discuss the assignment of error on the cross-appeal.

The first assignment of error on the original -appeal that we will consider, goes to the ruling of the chancellor on the appeal taken by the complainant from the action of the register in suppressing the deposition of the complainant’s witness Corbett at the hearing on the reference. The deposition of this witness was taken under the statute on direct and cross-interrogatories filed for that purpose. • The evidence sought by the complainant in the testimony of this witness was pertinent and material — that was to show by the witness the reasonable rental value of.the generators and switch-' beards during the period off detention of the same by *490the respondent. To this end the direct interrogatories were full, calling for the witness’ knowledge of rental values predicated upon a familiarity with the business of renting generators and switch boards. The cross-interrogatories w’ere intended to meet the testimony sought by the questions, and to ascertain the extent of the witness’ knowledge of values and how7 obtained, authorizing and qualifying him to testify to such values. This was the defendant’s right, and a right that he should not he. deprived of by a failure of the witness to answ’er without a sufficient reason, or by an evasive answer. The purpose and value of a cross-examination in determining the weight to be accorded to the testimony of a witness, as. well as in testing his sincerity and sifting his conscience, would be lost, if he should he permitted to ignore proper questions, or make evasive answers. In this case the testimony having been taken on interrogatories, the proper manner of objecttion for a failure of the witness to answer the cross-interrogatories, was by a motion to suppress the entire deposition before entering on the trial, and this was done here. The register sustained this motion, but the chancellor on an appeal reversed this ruling. In tliis action we think the chancellor wras in error. The answers' of the witness to the direct interrogatories clearly demonstrate the evasiveness of hi>s replies to the cross-interrogatories. He show's hjr his answers to the direct interrogatories an experience and familiarity in the business of renting generators and switch boards of eight years, he says that this business experience has been extensive, and based upon this knowiedge and familiarity in the business lie testifies as to reasonable rental values. The only answer made by this witness to the first cross-interrogatory, wiiich called for particular instances of renting within the witness’ knowiedge, wans as follows: “During my employment with Thompson, Bon & 'Company -they have never rented generators or switch hoards to any one; we sell them outright.” This witness testifies on direct examination that he has been in the employment of Thompson, Bon & 'Company *491for tiie past four years, but be also- testifies bliat bis familiarity with the business of renting generators and switch boards extends back eight years, covering a period of four years anterior to his connection with -said mentioned firm or -company. To the second cross-interrogatory directed to an end -similar to the first, his only answer is: “We have never rented any generators nr switch boards.” Evidently referring when he e-ays ¡re, to Thompson Son & Company, and covering the period of his -connection with the company. To the third -cross, he 'answers as follows: “We have never received any rentals for such generators or switch hoards because we never rented any.” It requires no argument to demonstrate that these answers are evasive. He makes no reference to any portion -of the eight years in which he claims to have -had great familiarity and an extensive acquaintance in the business of renting generators, hut to the four years in connection with Thompson Son & Company, and in this it seems that he had no experience, in renting whatever. If the deposition were permitted to stand, the complainant might legitimately argue that the witness’ familiarity and extensive acquaintance in the business -of -renting generators, etc.was referrable to the four years when he was not connected with Thompson Bon & Company. Nor ere these cross-interrogatoriés substantially answered in any other part of the deposition. The entire deposition should have been suppressed on defendant’s motion. Harris v. Miller, 30 Ala. 221.

When this cause was before this court on a former appeal (124 Ala. 202), the decision of this court was, that relation between the complainant and respondent as to the property in question wa-s contractual. It was then adjudged that- the respondent held tiie property in trust and au order was made directing the respondent to deliver the same to the complainant. ,The original possession of the respondent of the property was under a contract and rightful. Such being the case, damages for detention could only arise after demand made and a refusal to deliver. In the present case there is no evidence of any demand prior to the institution of the suit. *492In the absence of evidence of any demand prior to suit damages can only be estimated from the latter date. The decree of 'reference directed the ascertainment of the reasonable value of the use of the property during the period of detention. The reasonable value of the use, may,be determined by what the property would reasonably rent for during the period of detention— the rental value in the market, or what is usual and customary. And generally.this rule is adopted where the property has a rental value, though there may be other ways of showing the reasonable value of the use, especially where, it is shown that the property wrong-. fully detained has no market or customary rental value. But in either event, the burden of proof is on the party claiming damages for detention, to prove such damages.

Under the view© above expressed, in reversing the decree of the chancery court on the original appeal, the holding of another reference will be ordered, and in addition to the directions contained in the former order, the register will be required to also ascertain and report the alternate value of such of the property as the respondent may for any cause fail to deliver up. W-hat we have said will be sufficient in holding the next reference.

As the view wdiicli we have taken and expressed in the foregoing opinion opens up the case under the order of reference, the cross-appellant can take nothing by his appeal.

Reversed and remanded.