Opinion
6 Div. 369.
October 22, 1925.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
J. Carl Shepherd, of Berry, and W. F. Finch, of Lake Worth, Fla., for appellant.
Where a person has made contradictory statements, it is competent to impeach such witness by showing such contradictory statements. It is, also, competent to impeach a witness by showing that he testified to a fact in one case and testified differently in the case at bar. Jones v. State, 141 Ala. 55, 37 So. 390; Stinson v. Faircloth-Byrd Co., 3 Ala. App. 607, 57 So. 143; Phillips v. State, 11 Ala. App. 168, 65 So. 673; Sou. Ry. v. Smith, 177 Ala. 367, 58 So. 429; Harris v. State, 2 Ala. App. 116, 56 So. 55. Where, as here, a number of coal mines are being opererated on the waters above plaintiff's land, the jury cannot reach a fair verdict without taking into consideration the fact of such operation. Tutwiler C. C. I. Co. v. Nichols, 146 Ala. 364, 39 So. 762, 119 Am. St. Rep. 34; Jones v. T. C. I. Co., 202 Ala. 381, 80 So. 463; T. C. I. Co. v. Wilhite, 211 Ala. 195, 100 So. 135.
M. E. Nettles, of Jasper, for appellee.
Brief of counsel did not reach the Reporter.
The witness Lankford, husband of plaintiff, testified that before the land was affected by waste deposits from coal mines it was worth $75 an acre; and that before the last freshet, which caused an additional deposit which is the basis for this suit, the land was worth $45 an acre. It was proper for defendant to ask him on cross-examination what he assessed it for that year, the year before the deposits began, in connection with its offer to show by the witness that "he assessed it for not over $20 an acre that year and swore to it." The assessment thus proposed to be shown was the act of the witness himself, a declaration of value grossly contradictory of his testimony in this case. The fact called for was relevant as a material contradiction, and, being a merely collateral matter, the best evidence — the assessment return — was not required. This case is distinguished from Corona Coal Co. v. Corry, 209 Ala. 503, 96 So. 581, where the principle of admissibility was recognized, but the question to the plaintiff, "What valuation were you paying taxes on?" was held to be improper "unless it appeared that plaintiff himself had returned or suggested the valuation upon which he was paying taxes."
Plaintiff's witness, Whit Myers, testified that prior to March 24, 1923, the date of the last freshet and deposit, this land was worth $40 to $50 an acre, and that immediately afterwards it was worth $25 to $30. On cross-examination he testified that "this land, with reference to character, is about the same land as the Jim King land," which he had cultivated and which was right above this land.
Defendant proposed to contradict this witness by showing that in a suit by King against this defendant for injury to the King land, on the same issue as is here presented, the witness testified that prior to the last freshet, 1923, the King land was worth $25 to $30 an acre, a proper predicate having been laid. Defendant's theory as to this mode of contradiction is correct, but we think the witness' former testimony was not admissible in this case, because it was not made to appear that the injurious effects of prior overflows were substantially the same for the King and the Lankford tracts.
It seems clear that in this case by far the greater part of the damage to plaintiff's land was done by washings from other and larger coal mines, nearer at hand than defendant's.
"Where actual pecuniary damages are sought, there must be evidence of their existence and extent, and some data from which they may be computed. No substantial recovery may be based on mere guesswork or inference, without evidence of facts, circumstances, and data justifying an inference that the damages awarded are just and reasonable compensation for the injury suffered. Where there is evidence as to damage from various causes, as to a portion of which defendant cannot be held responsible, and no evidence as to the portion of the damages resulting from the separate causes, the proof is too uncertain to permit the jury arbitrarily to apportion a part or all of the proved damages to the act for which defendant is responsible." 17 Corpus Juris, 758.
We call attention to these principles, which seem pertinent to this case, in order that they may be given due application on another trial.
There are possibly one or two other errors shown by the record, but we need not consider them, as they will scarcely recur in the same form.
For the error noted, the judgment will be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.