Summary
In C. C. Snyder Cigar Tobacco Co. v. Stutts, 214 Ala. 132, 135, 107 So. 73, 75, this court held that an objection to evidence on the ground that it was " 'illegal, irrelevant, and immaterial, and because it called for a conclusion,' " operated as a waiver of the objection as for hearsay, although: "This testimony was undoubtedly objectionable, because it was but hearsay...."
Summary of this case from Granberry v. GilbertOpinion
8 Div. 779.
January 14, 1926.
Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.
B. F. Smith, of Birmingham, for appellant.
Count 1 was defective in failing to allege that plaintiff's car was struck at a time and place where it had a right to be. Walker v. A., T. N. R. Co., 194 Ala. 360, 70 So. 125; Stewart v. Smith, 16 Ala. App. 461, 78 So. 724. Failure to allege that Florence was an incorporated city and that the highway in question was public rendered the complaint subject to demurrer. Authorities supra. It was error to permit plaintiff to testify to what defendant's agent said after the accident. Ex parte Alabama Great Sou. Ry., 204 Ala. 504, 86 So. 100; Sou. Ry. v. Reeder, 152 Ala. 227, 44 So. 699, 126 Am. St. Rep. 23; Jones v. Central of Georgia R. Co., 204 Ala. 148, 85 So. 428; Stanton v. Baird, 132 Ala. 635, 32 So. 299.
Bradshaw Barnett, of Florence, for appellee.
If there was error in overruling demurrer to count 1, it was harmless. A. G. S. v. Hunt, 204 Ala. 504, 86 So. 100; Davis v. Reed, 211 Ala. 207, 100 So. 226. The courts take judicial knowledge of municipalities and streets. 23 Cyc. 87; 28 Cyc. 832; 3 Bouvier's Law Dict. (Rawle's 3d Ed.) 3156; Smoot v. Wetumpka, 24 Ala. 121; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422. There was sufficient evidence to show defendant was doing business in Sheffield, and the affirmative charge was properly refused. Int. C. S. O. Co., v. Wheelock, 124 Ala. 367, 27 So. 517; Farrior v. New Eng. Co., 88 Ala. 275, 7 So. 200. Defendant waived the question of venue. 40 Cyc. 111. Objection to a question upon stated grounds is a waiver of other grounds. McDaniel v. State, 97 Ala. 14, 12 So. 241.
The first count of the complaint does not show that plaintiff, at the time of the alleged collision, was at a place where defendant owed him the duty of exercising due care not to collide with him. Failing to show any duty in the premises, the count does not show a cause of action.
However, count 2 does state a good cause of action, and is not subject to any of the grounds of demurrer. It is not necessary to allege venue in a complaint, that being matter for defensive pleading in abatement. T. C., I. R. R. Co. v. Bridges, 144 Ala. 229, 237, 39 So. 902, 113 Am. St. Rep. 35. Nor is it necessary, under the allegations of counts 2 and 5, as amended, showing a collision "on the streets of the city of Florence," to further allege either that the city of Florence is a municipal corporation, or that its streets are public streets and highways, both of which facts are judicially known by the courts of this state. The demurrers to these counts were properly overruled. The sufficiency of counts 3 and 4 need not be considered, since they were taken from the jury by affirmative instructions for the defendant.
Since the place of the collision was proved without dispute, as alleged, as was also the fact that defendant was doing business in Sheffield, in Colbert county, at the time of the collision, the submission of count 1 to the jury was neither of advantage to plaintiff nor of prejudice to defendant, and had no bearing on the result; the only substantial issue in dispute being the negligence vel non of defendant's agent, Taylor, in driving defendant's car against plaintiff's.
One of defendant's chief insistences is that he was entitled to the general affirmative charge on each of the counts of the complaint, because there was no evidence tending to show that the defendant company was "doing business" in Colbert county at the time of the collision or at the time of suit. There was, however, no plea to the venue raising such an issue; and, moreover, the insistence is refuted by the testimony of Taylor:
"I solicited goods here [in Sheffield] Decatur, Huntsville, and other places. I took orders for them [defendant]. I was their salesman. I was selling goods for them in this county at that time." F. G. Cotton Oil Co. v. Baccus, 207 Ala. 75, 92 So. 4.
Under the Baccus Case this is "doing business" within the meaning of the venue statute (Code 1923, § 10471). In the case of I. C. S. Oil Co. v. Wheelock, 124 Ala. 367, 27 So. 517, relied on by appellant, the purchases of cotton seed were by brokers of limited authority, and were subject to confirmation by the corporation at its home office in another county, from whence the transactions were completed by dealings directly with the purchasers.
Plaintiff's counsel was allowed to ask him "if immediately after this accident and there on the scene, he [Taylor] told you it was his fault" — the answer being that he did so declare. This testimony was undoubtedly objectionable, because it was but hearsay; Taylor's statement being manifestly not a part of the transaction but a comment upon it merely, based upon retrospection and deliberation. Governor v. Baker, 14 Ala. 652, 656; L. N. R. R. Co. v. Carl, 91 Ala. 271, 9 So. 334; L. N. R. Co. v. Lynne, 196 Ala. 21, 71 So. 338. The objection interposed was that it was "illegal, irrelevant, and immaterial, and because it called for a conclusion." The statement of these grounds of objection operated as a waiver of the objection as for hearsay, but the ground last stated was good.
If, obviating the objection of hearsay, plaintiff had propounded the inquiry as to his fault directly to Taylor testifying as a witness, he having said nothing contradictory of the answer sought, the question would have been objectionable because it called for a conclusion of the witness. It was of course equally objectionable on that ground when it called for the same conclusion through the medium of hearsay.
Manifestly, it was not admissible on the theory of contradicting the declarant, since he had not as yet testified as a witness. We infer that it was admitted on the theory that Taylor was defendant's agent and could bind it by his declarations — an erroneous theory, because, as we have already stated, such declarations are binding on the principal only when they accompany and illustrate the act of agency. Authorities, supra. The admission of this alleged declaration by Taylor was probably prejudicial to defendant in the highest degree. So, also, any agreement made between Taylor and the plaintiff and Campbell, the automobile dealer, that the latter should let plaintiff have another car to use while the injured car was being repaired, was wholly irrelevant, and should have been excluded.
If there was error in not allowing defendant to show by plaintiff, on his cross-examination, that at the time of the collision he was owing one Campbell the purchase money for the damaged car, that evidence was supplied fully on the cross-examination of Campbell, and the error was harmless.
For the errors noted, the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.