Opinion
6 Div. 415.
November 13, 1928.
Appeal from Circuit Court, Walker County; D. A. McGregor, Special Judge.
Action by F. C. Hutto against Mack Blanton. From a judgment for plaintiff, defendant appeals. Affirmed.
The complaint is as follows:
"Count One. The plaintiff claims of the defendant the sum of $300.00 damages, for that heretofore on, to wit, the 24th day of October, 1926, the defendant negligently operated his automobile or an automobile in which he was driving upon, over or against one of plaintiff's mules, and while upon a public road or highway in or near Oakman, Alabama, injuring the mule so that he died.
"Count Two. The plaintiff claims of the defendant the sum of $300.00 damages, for that heretofore on, to wit, the 24th day of October, 1926, and within the corporate limits of the Town of Oakman, the defendant negligently operated an automobile upon, over or against one of plaintiff's mules, while the said mule was upon a public highway and within the city limits of said town, breaking one of the mules front legs and injuring him so that as a proximate result thereof, the said mule was worthless.
"Count Three. The plaintiff claims of the defendant the sum of $300.00 damages, for that heretofore on, to wit, the 24th day of October, 1926, the defendant wantonly operated an automobile upon, over or against plaintiff's mule, and while the said mule was upon a public highway within the city limits of the Town of Oakman, breaking the said mule's legs and otherwise injuring him so that as a proximate result thereof the said mule was worthless and valueless."
"A. The plaintiff claims of the defendant the sum of three hundred dollars ($300.00) as damages for that heretofore, to wit, on the 24th day of October, 1926, the plaintiff was the owner of a mule and said mule was upon or in a public highway in the corporate limits of the town of Oakman, in Walker County, Alabama; and on said day and date the defendant was operating an automobile upon or along said highway, and so operated or ran said car that it ran upon, over or against said mule of the plaintiff thereby breaking one of the legs of said mule and injuring said mule internally and externally so that as a proximate result of said injury mule was worthless.
"Plaintiff avers that said injuries to said mule as aforesaid were proximately caused by reason of and as a proximate consequence of the negligence of the defendant in this: That at said time and place the defendant so negligently operated the said automobile that it ran upon, over or against said mule injuring it as aforesaid.
"B. Plaintiff claims of the defendant the sum of three hundred dollars ($300.00) as damages for that heretofore, to wit, on the 24th day of October, 1926, the defendant was operating an automobile along a public highway within the town limits of Oakman, Alabama, in Walker County, and a mule, the property of the plaintiff was at the time upon said public highway, and the defendant wantonly ran said car upon, over or against said mule, thereby injuring said mule externally and internally and breaking one of its legs and as a proximate result said mule was worthless: Plaintiff avers that said damage as aforesaid was proximately caused by reason of and as a proximate consequence of the wanton conduct of the defendant in this: that the said defendant wantonly ran said car over, upon or against the said mule thereby proximately causing the injuries aforesaid and proximately rendering said mule worthless."
The demurrer to the complaint contained these grounds:
"1. Said complaint or count does not state a cause of action against the defendant.
"2. No sufficient facts are alleged in said complaint or count to show that this defendant would be liable to the plaintiff on account of simple negligence.
"3. It is not shown by the allegations of said complaint or count whether the plaintiff's mule was at such a place as that the defendant owed the plaintiff the duty relied on in said complaint or count.
"4. For aught that appears from the allegations of said count, or complaint, the plaintiff himself was guilty of contributory negligence in allowing said mule to run at large in said public road or highway."
Gray Manasco, of Jasper, for appellant.
Averment of the locus in quo of the injury must state facts showing duty owing by defendant. Ala. F. I. Co. v. Bush, 204 Ala. 658, 86 So. 541; Montgomery L. W. P. Co. v. Thombs, 204 Ala. 678, 87 So. 205; Mobile L. R. Co. v. Ellis, 207 Ala. 109, 92 So. 106. Duty of care must be averred in the complaint. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; A. C. L. v. McLendon, 18 Ala. App. 669, 94 So. 193. Pleading should show agency inflicting injury, and connection between negligence and injury. Gandy v. Copeland, 204 Ala. 366, 86 So. 3. On cross-examination, any fact tending to show partiality or to impeach witness may be elicited. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; Harbin v. State, 19 Ala. App. 623, 99 So. 740; Ex parte Holcomb, 208 Ala. 698, 94 So. 921. Wide latitude is permitted in cross-examination to test sincerity or truthfulness of witness. Gray v. State, 19 Ala. App. 550, 98 So. 818; Riley v. State, 209 Ala. 505, 96 So. 599.
J. J. Curtis and J. M. Pennington, both of Jasper, and Leo H. Pou, of Mobile, for appellee.
Each count of the complaint stated a cause of action. Smith v. Clemmons, 216 Ala. 52, 112 So. 442; Maddox v. Jones, 205 Ala. 598, 89 So. 38; T., A. G. v. Daniel, 200 Ala. 600, 76 So. 958; Southern R. Co. v. Harris, 207 Ala. 534, 93 So. 470. Even if one were defective, this would not suffice to reverse where there were other courts to which the judgment could be referred. Tucker v. Graves, 17 Ala. App. 602, 88 So. 40: Putman v. White, 18 Ala. App. 15, 88 So. 355; Nat. L. A. Ins. Co. v. Hannon, 212 Ala. 184, 101 So. 892. Appellant must not only show error, but injury thereby. Henderson v. T. C., I. Co., 190 Ala. 126, 67 So. 414; Fulton v. Watts, 209 Ala. 408, 96 So. 184; S.C. Rule 45; 4 Code 1923, p. 895.
This action was brought by appellee against appellant claiming damages for the negligent killing of appellee's mule by appellant's automobile while being driven on a public highway by appellant.
The complaint as originally filed contained three counts; two additional counts being added by amendment. The first, second, and fourth (A) counts charge simple negligence; while the third and fifth (B) counts charge wanton negligence. Each count charges that the defendant negligently propelled his car over or against defendant's mule while on a public highway, and are not subject to the grounds of demurrer assigned.
Defendant filed several special pleas, to which a special replication was interposed. Demurrer to this replication was overruled, and this ruling of the court is made the basis of assignment of error 4. However, we do not find that this assignment is insisted upon in appellant's brief, and therefore it will be considered waived.
One McNutt, a section foreman for the Southern Railway, was a witness for plaintiff. On cross-examination defendant propounded to him the following question:
"I will ask you if you haven't had mules killed and haven't see mules that were worth a good deal more than that mule, and if you ever turned in a single one of them for $200.00 in your life, the value?"
Objection to this question by plaintiff was sustained, and appellant's principal insistence on this appeal is that this was error. We do not so conclude. Courts should be careful to allow parties to show bias, prejudice, or interest on the part of witnesses, and should so exercise the discretion they possess in controlling cross-examination of witnesses to permit such to be developed, if it exists. But the question quoted does not call for testimony showing any interest, bias, or prejudice on the part of the witness toward any party to this record. There was no error in this or other ruling of the court presented for our consideration. The judgment appealed from will stand affirmed.
Affirmed.