*1 OF 15.3 Dickson, et al.] R. Co. v. R. & Nashville

[Louisville R. et al. R. Co. v. & Nashville Louisville Dog. Injury Damage for January 9, Rehearing 1917. denied (Decided 1916. December Value; for Damages; no market value Place. —Where 1. Market question fixing injury occurred, place at which property at rule, injury general competent its under loss or places, transportation, of other with cost value at other market place injury. fact, value at the to deduce the to enable the was a clear from the evidence that there market 2. Same.—Where it is occurred, injury place at the then evidence the market value value of the where places property at is not admissible. other Same.; clearly examined and held not a 3. —The evidence to show market injured, property place ren- value where was so to proof der market nearest market. admissible value Objection» Trial; Reception Evidence; 4. the evidence is not —Where subject only objection interposed, not which was it was error to ad- mit the evidence. Question. Evidence; Expert; Hypothetical 5. the action was by poisoning hunting dogs, question doctor, the loss in transit of to a “If symptoms enumerated, an animal is affected with the have and seven during period period of them died of from four to a hours two to three days, you say what reply, was the cause of “I their death?” his poisoning,” proper, think it was arsenic supported as the was by adduced, responsive. was answer Trial; Reception Evidence; objection Motion to Exclude. —Where no interposed hypothetical question expert, asked a medical not error for a trial court to overrule motion to exclude his answer. Evidence; Opinion; Conclusion.—Where the issue was whether or not poisoned before or after their to defendant for car- riage, the telegraph operator of defendant whether after baggage anyone room there was poison them, proper administer the room all the his since showed that baggage open public, room was and he was time; amounting his answer guess to no more than a surmise or upon jury. an issue which was for the Action; paid Contract or Tort. —Where the owner of for trans- portation baggage upon for himself and excess he could sue the company railroad by either in contract or in poison- tort for loss death from ing owners insofar checked; the contract sole benefit of such liability railroad’s was concerned. Carriers; Passengers; Baggage. undertaking carry pas- —The senger separable undertaking carry dogs the carrier’s checked passenger. APPEALS COURT Dickson, et ah] R. Co. v. R. hunting dogs author- joint owners of two one 10. Same. —Where *2 transportation, of the other, for purchased tickets act for the ized in- loss or to both owners for dogs, liable railroad was party jury and their dogs. Custody. Baggage; does not de- Same; the owner 11. —Where responsi- custody, he assumes the it in his carrier but retains liver it to the bility, it, unless the loss for the loss of carrier liable and cannot hold the carrier, in the car- negligence which event or fault from the occurred hire, ordinary and not as a common carrier. is liable as an bailee rier action, Same; such an to find for defendant Instructions. —In dogs, in with instruc- were left in case the servants relieved the tions to look after the after their negligent liability notwithstanding the carrier’s servants were carrier from custody, properly respect protection in of its and was refused. Same; recovery Damages. limiting such an action an instruction —In showing damages properly refused to nominal as there was evidence point the market value of the at the of destination. Appeal Error; Assignment Error; the brief Waiver. —Where merely great weight insisted ant, trial, that the was in favor of defend- refusing grant and the court erred in defendant’s motion for a new assignment waived, of error as to trial since new will be treated as assignment dignity argument. the treatment of the did not rise to the of an Carriers; Passengers; Baggage. damages the action was for poisoning hunting dogs they baggage, after were checked as was no defense that one of the owners was absent when the tickets were purchased by others, and that therefore the absent ownr was not contract, purchasing since the owner acted for the other. Appeal from Lowndes Circuit Court.

Heard before Hon. A. E. Gamble. (This by cause was Supreme reviewed on cer- Court Appeals, tiorari to the Court of and the writ was denied. See parte Ex L. N. Dickson, al., & R. R. Co. v. et by against Action R. S. Dickson and another Louisville Company, Nashville Railroad for the death of cer- doys. Judgment plaintiffs, tain appeals. and defendant Af- firmed. appears from the going evidence that were from Ala., Tyson, upon hunting

Báy expedition, and, Minette to themselves, having purchased tickets delivered 16 hounds, transported to be to defendant the same train with Bay Tyson; they checked, that after Minette them Bay Minette, depot train, and on the and while Haygood, having died. Dr. sick and 5 testified that he became years, question: nine was asked the practiced medicine had symptoms you is affected with “If an animal have enu- E. E. Co. v. merated, period seven of them died from a of four hours period days, say of two or cause what was the of their death?” poisoning.”

The “I witness answered: think it was arsenic answer, The court overruled the motion to exclude the excepted. telegraph operator defendant is a witness Levine Minette, Bay Telegraph Company Louisville & Nashville and, testifying baggage-room after all time, put was in there several times after the but if, there, after he was asked any there, any poison, any one had to administer baggageroom. anything of that to them in the sort following charges were refused to defendant: If, were delivered to defendant and checked, reasonably you are were left satisfied *3 Sager, them, charge or either of Lord or Ed Reese and Will them, instructions to look after by plaintiffs, or either of with dogs instructions, them, they under took dogs their at the time in- were the and that jured, your for defendant. be verdict should evidence, event, the are if believe (11) In no damages. nominal than recover more entitled to Hamilton, Jones, Fields, and Powell & Thomas & EwiNG, appellee. appellant. Leader & is BROWN, (1, that there 2) evidence J.— Where the shows place property in at the which market value of fixing general governs the for its loss under the rule permissible value at other injury, the market transportation facts that or other will places, cost of “with question.” place the at to deduce value enable the places at than the However, value other of the market evidence governing admissible where usually in such matters not places place. at value that clear that is a evidence is —Comer Ala, 310, 966, Am. Edmundson, 54 Way 107 Co. v. & & Jemison, Ala. Allen 78 93; Thornton v. & & Rep. Johnson St. Rep. Am. 56 that, plaintiff’s (page 17) recites witness 4) The record (3, “being the market value of asked to state George testifying compared had with he been which about five OF APPEALS COURT al.]j v. & Nashville R. R. Co. Tyson 22, 1913, at on others November answered witness only way figure anything could value was what market, bring on the and the that he would named there date, brought probably apiece have on would thought and he $100 apiece have been a market value other $50 Rock, Grace, Henry.” testimony given objection; and, This without while it Tyson, value tends to show market at there was Tyson. other evidence that had no market value cannot Therefore it dogs be said clear and, Tyson; had a market under value the rule stated right plaintiff’s proof to make above was of the market property Tyson. value of the at the nearest market —Johnson Hubbard, 69 Ala. 379. And while it was incumbent on the go further and show the cost of Prattville, Tyson to the evidence was not irrelevant to the issues and, case; only objection urged, ruling objection interposed of the court on the was correct. —McDaniel State, v. Ala.

(5, hypothetical 6) Haygood witness Dr. supported adduced, that had been and his responsive.- Evidence, answer was ermore, 370-374. Furth §§ —Jones objection interposed question, there was no error for the court to overrule motion to exclude Norwood, App. answer. —Yolande Coal Co. 58 South. 118. litigated fact in case was whether the

poisoned or after before delivered to the defendant and necessarily accepted by inquiry it. This involved the *4 and the whether the conduct of the defendant’s circumstances any afford an servants were to one so disposed poison to the without to administer detected. questions solve, of the for the This was one and it was objection question sustain the court to the to the not error Levine. In propounded the view of the testimony witness baggageroom showing open pub that the was this witness baggageroom time, the all the lic and the witness but otherwise, engaged the answer to the that he was guess, objection a the surmise have amounted was jury. left to the and the properly sustained —Brandon 365, Ala. Distilling Co., Progress v. Further- v. R. R. Co. see, more, that, noth- testify he was far as he could allowed to so baggage- ing given room.

(8-10) dispute the that evidence shows without in their question; partners the owned that the tick ownership; McCurdy paid all of purchased baggage; the paid tickets and these ets and the excess the transportation payment baggage was for the a accompanied plaintiffs on hunt party who had entire contract, ing it relates to expedition.; far as plaintiffs, involved, liability benefit of here sole they may dogs. either ex contractu sue Hence owners Co., 169 Ala. Tel. delicto for their U. or ex loss.—McGehee W. undertaking 1912B, Ann. Cas. undertaking carry the carry separable 485, 63 Knox, party. South. S. R. R. Co. v. G.—A. cited, just (N. S.) the court said: In the case 49 L. R. A. n “It plaintiff to use the failure of not whether matters carrier her passenger rendered ticket as a distinction, for, baggage, freight if there is instead of trunk as same, liability difference, duty and are the without agent that, plain sold the defendant’s remains when and the fact transport agreed to her Birmingham, it tiff the ticket both, paid, that the price and the fact trunk, one or her to, ticket, intend did not plaintiff or did not did use gratuitous her trunk.” bailee of render the defendant this, reasoning in case to the result apply the we When tickets, agent that, defendant’s sold is agreed when the McCurdy having, and the transport Dickson, authority to act for relation with his loss, liability dogs, the for their Mm in the was, plaintiffs. liability is to if not deliver it does (11, 12) If the owner of thereby custody “he assumes carrier, it in his but retains it, the loss the carriér responsibility, hold and cannot n unless carrier, negligence or fault from the the loss occurs liable, but common not as a he would be in which event Carriers, hire.” —1 Hutchinson ordinary bailee as an § *5 APPEALS COURT OF Nashville R. R. Co. owner, having “In such case the far made carrier, purposely has withheld it. He

to the has trusted the reposed, and where there has been no trust there can be liability; very liability.” for trust is the of basis Hutchin- —1 Carriers, son § Charge 10, defendant, refused to the does not assert (cid:127) proposition. “If after asserts: delivered checked,” reasonably defendant satisfied that charge plaintiff’s were left in with servants instructions to look charge instructions, took of them under such charge then the The liable. assumes that the hypothesized, although facts had been delivered it, accepted by deprive defendant and custody standing the defendant its of any duty premises, and relieve it from notwith- negligent respect protection its servants custody proximate consequence injury and as a of its oc- properly refused. curred. testimony George the witness herein- quoted tends to show the market above value of the Tyson; and, evidence, charge in view of this properly 11 was refused. insistence, brief, relating

(14) The to the refusal aof new great weight testimony “The trial is: inwas favor defendant, refusing grant below erred in court de for a new trial.” fendant’s motion This, rulings repeated Supreme Court, under the does argument,” dignity an and will

not “rise be treated as a assignment Georgia Lee, waiver Cotton Co. v. error. — 158; Republic Quin- 196 Ala. Iron & Steel Co. v. South; 604; ton, 194 Ala. Tel. Benson, W. U. Co. v. questions argued, and, finding treated all haveWe no error record, judgment of the circuit court will be affirmed. Affirmed.

ON REHEARING. appellant, (15) The argument in the brief and filed on sub mission, insisting that the refusing court erred in the affirmative complaint, as to the first count of requested by it, says; “There nois whatever to sustain the averments

[McDonough v. Commercial State Bank.] plaintiff R. S.' contended that of this count. cannot be any contract, not there Dickson was as was gone purchased, time home two the tickets were but had days before.” original opinion, said in the the evidence shows As property in-

McCurdy joint owners of and Dickson bought and suit; in all tickets this volved doing in arranged and of the ownership copartner acted for himself and his dogs; transportation of legal the contract for the and effect benefit, and or for their sole was with duty growing out of the for its breach were authorized sue contract. rehearing, it on the appellant’s insistence weAs understand special express import a of the first count that the averments only carriage dogs, and that the contract contract implied by the transaction. This con- one law shown was complaint language of the When is too technical. tention construction, it hold that avers we subjected ato reasonable transport plain- legal undertook that the defendant effect diligence transpor- in their reasonable to exercise tiff’s injury; them from protecting and in tation count; the affirmative therefore support the tends properly refused. count was as original disposed urged of in the are points brief The other opinion.

Application overruled. Bank. State

McDonough v. Commercial Assumpsit. (Decided South. 1916. 73 December Amendment; complaint a originally as Parties; filed Name. —Where Co., corporation, proper Bank & Trust against the Commercial Bank, a read the Commercial State cor- permit amended so to be corporation, being real name poration; name. corporation former Error; Error; Pleading. Appeal complaint Harmless proper name of to and amended so the cor- was demurred