Southern Railway Co. v. McEntire

53 So. 159 | Ala. | 1910

MAYFIELD, J.

While, in an action of trespass to land, it is necessary to prove that plaintiff was in possession or had the right to immediate possesion at the time of the alleged trespass, yet he need not allege such facts in that manner; it is sufficient to allege that the land in question belonged to plaintiff. — Code 1907, vol. 2, form 26, p. 1199; Brinkmeyer v. Bethea, 139 Ala. 377, 35 South. 996.

There was certainly no reversible error in allowing {daintiff to amend his complaint by adding count 2 thereto, because, on the former trial, or at a former term of the court-, plaintiff had withdrawn this count from his complaint. If not a matter of absolute right under the statute (and we1 do not decide this), it was certainly within the discretion of the court to allow the amendment at that time and in that manner. Withdrawing the count as it was withdrawn clearly did not amount to a “retraxit,” or estop or prevent plaintiff from refiling the same, and certainly not, with the permission of the court.

Under our system of pleading, the withdrawing of (me of several counts of a complaint is nothing more, in effect, than an amendment of the complaint hy striking out such count; and there is no impropriety, much less error, in allowing the plaintiff to refile the count thus stricken out or to again amend his complaint, by adding thereto the count theretofore withdrawn or stricken, unless it shofid be made to appear that the pleader, in so doing, was trifling with the court, or intending to delay the trial.

Such withdrawal of certain counts is not a “retraxit,” nor tantamount thereto. It is not a formal renunciation of plaintiff’s right of action in open court, by which plaintiff forever loses his right of action, or by which it is carried into the judgment of the court. This much is necessary to constitute a retraxit. It is not, in the instant case, even a dismissal or a discontinuance of plaintiff’s entire cause or right of action. A dismissal or discontinuance is not equivalent to a retraxit. — Bullock v. Perry, 2 Stew. & P. 319; Thomason v. Odum, 31 Ala. 108, 68 Am. Dec. 159; McGeehee v. Hill, 1 Ala. 145.

While each count of a complaint and each count of an indictment may be said, in some cases and for some purposes, to state an independent and separate cause of action or offense, such is not always the case for all purposes. In some cases each count states one and the same cause of action, but in different form or in difieren! language, to meet different phases of the evidence; yet several causes of action or offenses may be joined in the same complaint, but not in the same count; but there are some causes of action and some offenses which cannot be joined in the same complaint or in the same indictment, much less in the same count.

We see no error in allowing the plaintiff to prove the value of his house on the land in question. While of course the true measure of plaintiff’s damages was the difference in value of plaintiff’s land in question, before and after the trespass and Avrongs thereto complained of, yet, if it be proper to prove the value of the house in order to ascertain this difference, it does not appear that this evidence did or could have prejudiced or damaged defendant; but in' filet it Avas properly called forth by defendant’s evidence offered, Avhich tended to prove that the land in question was fitted and suitable chiefly for manufacturing purposes, and not for the purpose of residence property, or for that for Avhich plaintiff was using it, and that therefore the construction of the railroad upon a part of it would tend to enhance the value thereof, rather than to clepre"ciate the value. It appears that the court properly instructed the jury as to the measure of damages, so no injury could have resulted from the admission of this evidence.

There was no error in the court’s declining to allow defendant to ask plaintiff if one Hall’s building did not extend a certain distance into a certain street. This Avas not a disputed or material question under any issue in the case. If a fact, it AAras no justification for any wrong complained of in this action, and if so the fact was shown and undisputed. — Forst v. Leonard, 116 Ala. 82, 22 South. 981.

■ We cannot say there was no evidence in this case tending to show malice on the part of defendant’s agents, in committing the trespass complained of, nor that there was error in that part of .the oral charge relating to malice and to which an exception was reserved.' — Smith’s Case, 141 Ala. 342, 37 South. 490; Hick’s Case, 133 Ala. 425, 31 South. 947, 57 L. R. A. 720, 91 Am. St. Rep. 38.

If the trespass to plaintiff’s property complained of cut off the access to the river from this property, this might be considered as one of the elements going to make np the entire damages claimed to have been suffered on account of the trespass. This was all the charge of the count as to this matter amounted to.

It was certainly shown that defendant constructed its railroad across a part of plaintiff’s land, knowingly and without his consent, and without compensating him therefor, and without offering so to do. It might be inferred, if the evidence does not show, that it ivas so constructed on this land over his protest. Clearly there was no error in the court’s declining to give the general affirmative charge as to any count of the complaint. There was evidence tending to support each.

The amount of damages was a question to be determined by the jury, from the evidence, under proper instructions from the court on the subject. There Avas abundant evidence to support the verdict rendered, and the court properly instructed the jury on this question; and we cannot disturb it, nor say that .the trial court should have set it aside because excessive. Some of the witnesses were shown to have knowledge sufficient to qualify them to testify to the facts necessary to fix the amount of damages. The evidence of these witnesses fixed the actual damages at $1,500, which was in excess of the verdict] and, as it was a case in which the jury may have aivarded punitive damages, we cannot disturb it upon the ground that a majority of the witnesses fixed the amount at a sum much less.

Finding no error, the judgment of the trial court must be affirmed.'

Affirmed.

Simpson, McClellan, and Sayre, JJ., concur.