71 So. 397 | Ala. | 1916
On the former appeal the law of this case was stated (Bush v. Russell, 180 Ala. 590, 61 South. 373), and defendant’s pleas 5 and A were held insufficient.
The point is well taken by demurrer that the allegation, in this plea, that plaintiff’s acts in making said sale were such as to render said contract voidable at the election of the United States government, was in effect a mere legal conclusion, and was not “a succinct statement of the facts relied on,” as required by section 5330 of the Code. The authorities on this point were collected by Mr. Justice Somerville, in Phoenix Ins. Co. v. Moog, 78 Ala. 284, 301, 56 Am. Rep. 31, to which may be added Tennessee, etc., Co. v. Herndon, 100 Ala. 451, 456, 14 South. 287; Kolsky v. Enslen, 103 Ala. 97, 100, 15 South. 558; Johnson v. Ry. Co., 104 Ala. 241, 16 South. 75, 53 Am. St. Rep. 39; Lawton v. Ricketts, 104 Ala. 430, 436, 16 South. 59; St. Louis, etc., Co. v. Phillips, 165 Ala. 504, 51 South. 638; Mobile Elec. Co. v. Sanders, 169 Ala. 341, 351, 53 South. 176, Ann. Cas. 1912B, 461.
Without a statement of the facts relied on to defeat plaintiff’s suit, how could the plaintiff know what the real defense was? The plea fails to disclose what act or acts of the plaintiff rendered the contract voidable at the election of the government. It cannot be said that the allegation, that “plaintiff resorted to lobbying in order to bring personal influences to bear upon the officers of the United States government,” was sufficiently specific to point out the officers so sought to be influenced, or to amount to an averment that an officer of the United States government having the authority at the time to determine the site of the post office in Mobile was influenced by an improper act of the plaintiff to locate the post office on defendant’s lot. It would have been impossible for the plaintiff to prepare to meet such a defense.
This condemnation was instituted and conducted in the proper court, as a convenient method of taking over the defendant’s property according to the agreement of purchase, and of curing any possible defect in defendant’s title thereto; at the same time its actual and legal result was a final judgment of condemnation of the property, by a court of competent jurisdiction, rendered at the instance of the United States government against the defendant and said property. A final judgment of such character not appealed from, procured by, and acquiesced in by, the United States government, and fully satisfied by the payment on its part of the damages or purchase price so assessed and adjudged, could not thereafter be disturbed nor vacated. The judgment, being in all things regular and final, precluded inquiry into the preliminary negotiations. The plaintiff may have resorted to lobbying, in the initial proceedings, to bring the property to the attention of the government authorities, and so might have caused an executive officer of another department of the government to suggest such condemnation of the defendant’s real property; and yet the United States, by resort to this extraordinary power of government, had taken defendant’s said property for its legitimate needs, paid the damages therefor as determined by the rules of law governing such cases, and the defendant owner had received said damages so assessed for the condemned property. Thereafter the United States had no right of appeal or of review, and no right of rescission, for all the negotiations and incidents of purchase, together with the agreement, were merged into the binding judgment, and the judgment was fully discharged, and, so far as the pleadings disclose, the defendant was enjoying the full benefits of plaintiff’s services, and no effort on the part of the United States government was being made, or even threatened, to disturb the enjoyment of the proceeds of the condemnation proceedings.
In Holland v. Spell, supra, Chief Justice Hackney, observes: “We can conceive of no good reason why he should, in good conscience, be permitted to receive all the benefits of the (condemnation) proceeding, and, while holding them, deny that the proceeding is effectual to create the burden corresponding to such benefit.”
In Garrison v. New York, 21 Wall. (U. S.) 196, 203, 204, 22 L. Ed. 612, the court says: “In the proceedings to condemn the property of the plaintiff for a public street, there was nothing in the nature of a contract between him and the city. The state, in virtue of her right of eminent domain, had authorized the city to take his property for a public purpose, upon making to him just compensation. All that the Constitution or justice required was that a just compensation should be made to him, and his property would then be taken whether or not he assented to the measure.”
It follows therefore that plea A was no answer to the fourth count of the complaint.
Appellant’s next assignment of error challenges the ruling of the court in declining to compel the plaintiff, Bush, as a witness, to give the contents of a letter that had been destroyed, and in refusing defendant’s motion for a nonsuit, because of Bush’s failure to set out the letter in extenso in his response to interrogatories propounded to him under the statutes.
In the case before us the record does not contain a “motion and due notice thereof’” to require the party to produce the letter under section 4058 of the Code. The question for decision arose on the cross-examination of the plaintiff, Bush, while a witness in his own behalf. He was asked by defendant’s counsel for certain letters and telegrams received and sent, as to the proposed post office site. The witness admitted that he had sent a telegram to one Armbrecht, and exhibited a copy thereof to counsel. He was then asked: “Will you. produce the letter that you received from Mr. Armbrecht?” Witness answered: “No, sir; I could not do it.” When asked what he did with the letter, witness answered: “It has been destroyed. There were some matters of a personal nature in that, that had no bearing on this proposition.” When questioned as to the date of its destruction, witness answered to the effect that he “could not even approximate it.” Counsel then asked: “Don’t you know it was, Mr. Bush, * * * you destroyed that letter when I propounded interrogatories calling for it? * * * Was that when I called on you to produce Armbrecht’s letters, you tore them up and destroyed them?” Witness answered: “That one letter, yes; I declined to produce it. There were one or two matters of a personal nature in that letter.” When asked, “Tell us the contents of that letter, please,” witness answered, “No, sir.” The defendant then moved the court to compel the witness to give the contents of the letter from start to finish. The plaintiff interposed an objection to this, and, the objection being sustained, defendant excepted, and here assigns this ruling as error. The court, however, then stated that the witness could detail the contents of the letter relating to the case, but not matters of a personal nature.
By section 4055 of the Code .of 1907, when the answers to interrogatories propounded under the statute “are not full, or are evasive,” the court may either (1) attach the party and cause him to answer fully in onen court, or (2) tax him with so much of the costs as may be just, and continue the cause until full answers are made, or (3) direct a nonsuit or judgment by default, or enter such degree as would be appropriate if such defaulting party offered no evidence. The court has the discretion which mode to adopt in order to compel full and direct answer.—Goodwin v. Harrison, 6 Ala. 438; Pool v. Harrison, 18 Ala. 514; Ex parte Grantland, 29 Ala. 69; Ex parte McLendon, 38 Ala. 276; Culver v. Ala. Mid. Ry. Co., 108 Ala. 330, 18 Sputh. 827. A movant cannot deprive the court of this discretion by limiting his motion to the request for a nonsuit. Whenever the motion so limits the action of the court, it may be refused, even though the trial judge may believe the party against whom the motion is directed was in default and should be compelled or punished by one or the other of the methods provided in the statute. In short, the court, in its discretion, may pursue any one of the three courses provided by the statute, and no error can be predicated upon the refusal of a motion specifically insisting that the court adopt a particular one of the three alternatives, selected and pointed out to the court therein. The exercise of such discretion is not the subject of review.—City of Bessemer v. Southern Railway Co., 157 Ala. 428, 48 South. 103.
In Broadwell v. Stiles, 8 N. J. Law 58, the Chief Justice declared that the fact of destruction excites suspicion and unfavorable presumption, and that he who voluntarily, without mistake or accident, destroys .primary evidence, thereby deprives himself of the production and use of secondary evidence; that to admit such evidence “under such circumstances is as repugnant to principle as to deny a party the cross-examination of the witness of his adversary.”
In Juzan, et al. v. Toulmin, 9 Ala. 662, 691, 44 Am. Dec. 448, this court declared, touching th'e admission of secondary evidence, that “if any suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its nonprdduction” before secondary evidence will be admitted of its contents.—Agee v. Messer-Moore, etc., Co., 165 Ala. 291, 51 South. 829.
An unfavorable inference may be drawn against one who suppresses or destroys evidence. A familiar illustration given of this presumption is found in the case of Armory v. Delamire, 1 Stra., 504; s. c., 93 Eng. Reprint, 664. Commenting thereon, Mr. Justice Sherwood (Pomeroy v. Benton, 77 Mo. 64, 87) said: “It is easy to see that the chimney sweep’s boy would have been in but a sad case, if he had been required to show by ‘secondary evidence’ what the contents of the empty socket were; something which-he knew not; something which the spoliating defendant alone knew.”
So in 1 Phillips’ Evidence (3d Ed.) 422, the author says it is held in the Queen’s Case (Vincent v. Cole, M. & M. 258) that it is not allowable, on cross-examination, in the statement of a question to a witness, to represent the contents of a leter, and to ask the witness whether he wrote a letter to any person with such contents, or to the like effect; because the counsel might thus put the court in possession of a part only of the contents of a written paper. In Winchell, et al. v. Edwards, et al., 57 Ill. 41, 49, it is stated that when a person is proved to have suppressed any species of evidence, or to have defaced or destroyed any written- instrument, a presumption will arise that, if the truth
“If the deed contained this clause, its preservation by A. H. Slaughter would have established beyond dispute his title to the property and his right to convey it to his second wife. Sane and reasonable people do not, as a rule, destroy evidence favorable to the establishment of their own title. A party who destroys the evidence by which his claim or title may be impeached thereby raises a strong presumption against the validity of his claim.”
Though there was no formal motion to produce the letter, the record shows that, when testifying as a witness in his own behalf, and cross-examined by defendant’s counsel, Bush was producing his correspondence with many parties relating to the location of the post office on Mrs. Russell’s lot; that a copy of a telegram from him to Armbrecht showed that the letter in question had been received and that it was important. At this point witness was asked by defendant’s counsel to-repeat the contents of the letter received from Armbrecht; but witness declined to do so. It was made clear to the court that the plaintiff had destroyed the letter, to prevent being required to produce it on the trial, and that it was destroyed after defendant had propounded, under the statute (Code, §§ 4049, 4057), interrogatories to the plaintiff, Bush, and after the latter had prepared his answers thereto.
If the presumption is against one who suppresses or destroys documentary evidence, and such party may not introduce secondary evidence of the contents of the paper, it is also true that
After service on plaintiff of the interrogatories propounded under the statute, calling for the correspondence, the plaintiff cannot successfully maintain that the document called for in the interrogatories and destroyed by him was not material evidence, or that he had disclosed the material portions thereof. Nothing short of the judgment of the court upon the relevancy of the contents of the letter will satisfy the reason for the rule of the authorities we have cited. For this error of the trial court in substituting the judgment of the witness for that of the court, touching the materiality of portions of documentary evidence, the cause is reversed.
The question went no further than to ask whether or not a memonrandum of the substance of the letter, in so far as it related to the post office site, had been made by witness, or at his request — which was competent.
Reversed and remanded.