Page images
PDF
EPUB

conceding that the purpose of the act is to regulate the practice of medicine, and to prevent unskilled and incompetent persons from engaging in such practice, that purpose does not include within its scope the mere selling of drugs and nostrums, and hence that section 12, by reason of the construction so placed on it, must be considered as eliminated from the act. The conclusion as thus stated is authorized by the premise which the counsel have assumed, since an act to regulate the practice of medicine could not, in view of the constitutional inhibition relied on, fairly include within its scope provisions regulating the mere sale of medicines or nostrums, or any other articles of commerce; otherwise it might be extended to retail and wholesale dealers as well as to itinerant venders. But, for the establishment of their premise, the counsel have given to the opinion and decree referred to a broader interpretation than we are prepared to accept. Α careful consideration of section 12 of the act of 1894 leads, as we think, to the conclusion that it was not intended to apply to the itinerant vender, merely in his capacity of vender, but that the lawmaker was undertaking to deal with him, for the purposes of the act, as a person professing to treat or cure disease or deformity by the use of drugs and nostrums which he sells, or by manipulation or other expedients. It is true that the section is inartificially drawn, but, as drawn, it cannot be interpreted as defining and denouncing two offenses,-the one, of selling, and the other, of professing to cure with, drugs and nostrums. Thus the language reads: "That any itinerant vendor of any drug, nostrum, or application of any kind, intended for the treatment of disease or injury, or who may, by writing, print, or other methods, profess to cure or treat disease or deformity by any drug, nostrum, manipulation, or other expedient, in this state, shall, if found guilty, be fined," etc. It is obvious that this sentence is rendered grammatically unintelligible by the introduction of the disjunctive "or" after the word "injury," thereby dislocating the adjective or descriptive clause, modifying the subject, "itinerant vendor," and disconnecting it from its predicate, "shall be fined." We have, then, either to hold that the section means nothing, or else to ignore the offending word. as not written, leaving the sentence to read: "That any itinerant vendor of any drug * who may, by writing, * fess to cure or treat disease * * * shall * * any drug * be fined," etc. And there is abundant authority for the adoption of the latter alternative. Civ. Code, art. 18; 1 Hen. Dig. pp. 783, 784. In the case upon which counsel rely (State v. Judge, 105 La. 371, 29 South. 893), the question presented was whether section 12 of the act of 1894 was repealed by Act No. 13 of 1896, and it was held that there was no repeal. But it was not held that the itinerant vender was dealt with in section 12 merely as a vender. 31 So.-2

pro

by

The language of the opinion was, in part, as follows, to wit: "Act No. 13 of 1896 says not a word about amending or repcaling section 12 of Act No. 49; and the repeal of section 12 must result, if at all, from an inconsistency between it and the new sections 14 and 19, inserted by Act No. 13." Sections 12 and 14 (the latter as it originally stood in Act No. 49, and as amended) are then recited at length, and the opinion proceeds: "The two sections [12 and 14], as they originally stood in Act No. 49, were not inconsistent. The one section provides for the case of itinerant venders of drugs, etc., and seems to put their business, unconditionally, and for good and all, under ban, whilst the other section provides for the case of practitioners of medicine, permitting them to be licensed. Each section makes separate and different provisions for the case it separately deals with. The two sections were not inconsistent as they originally stood in Act No. 49, and are not rendered more so by the amendment of section 14. The section, after amendment, is identical with what it was before amendment, except that the process it provides for is changed from criminal to civil. It continues to deal with a case different and separate from that dealt with by section 12, and continues to be perfectly consistent with section 12." It will be remembered that this language followed the recital in full of the sections referred to, and the words, "The one section provides for the case of itinerant venders, etc.," were used merely to indicate a section, the entire text of which had already been given, so that the character "etc." may be considered as standing for so much of the section as is not again expressed in words, and which proceeds to describe the subject of the sentence as not merely a vender, but a vender "who may profess to cure or treat disease, by any drug, nostrum, etc." It is true that section 13 of the act of 1894 reads: "That any person shall be regarded as practicing medicine, in any of its departments, within the meaning of this act, who shall append the letters M. D. or M. B. to his, or her, name, or repeatedly prescribe or direct, for the use of any person or persons, any drug or medicine, or other agency, for the treatment, cure, or relief of any bodily injury, infirmity, or disease. This act shall not apply to farmers or planters when exclusively practicing, without compensation, on their employés and tenants." And it is also true that the act of 1896 so amends the following section (14) of the act of 1894 as to provide a civil, instead of a criminal, remedy in cases of persons practicing medicine in violation of the provisions of the act, whilst section 12 of the act of 1894, which provides a remedy by criminal proceedings in the case of the itinerant vender who may profess, etc., is left untouched. But as was said in the opinion to which we have just referred, the itinerant vender, professing to treat and to cure disease or deformity, is placed in a class by himself. He is not re

garded as a practitioner of medicine, in the sense of being a person who, by appending the letters "M. D." or "M. B." to his name, assumes that character. And yet by undertaking to treat disease, being presumably unskilled and incompetent, he is within the scope and purpose of the act, and is a person against whom there is greater need that the public should be protected than one whose only disqualification is the lack of the certificate of the board of medical examiners.

Confining ourselves to the questions which, from the excerpt from the brief of the relator's counsel heretofore given, we understand to have been the only questions relied on in the district court, and which are specified as the only questions urged here, we are of opinion that the application for the writs of prohibition should be denied. And it is so ordered.

STATE ex rel. ROBLEE v. BAINE. (Supreme Court of Alabama. Dec. 19, 1901.)

QUO WARRANTO-APPEAL-TIME. Under Code 1896, § 3437, providing that in quo warranto proceedings an appeal may be taken to the supreme court within 10 days after the judgment is rendered, time is of the essence of jurisdiction, and an appeal not taken within the time prescribed will be dismissed.

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Quo warranto by the state, on the relation of Roblee, against Tom Baine. Judg. ment for defendant. Relator appeals. peal dismissed.

Ap

Garrett, Underwood & Thach, for appellant.

DOWDELL, J. Section 3437 of the Code of 1896 provides that in quo warranto proceedings an appeal may be taken to the supreme court within 10 days after the judgment is rendered. In the present case the appeal was not taken within the time prescribed, but long after the lapse of 10 days from the rendition of the judgment. The time within which an appeal must be taken to this court, which is purely appellate, is of the essence of Jurisdiction.

It follows that the appeal must be dismissed.

Ike Marks was found guilty of an assault and battery, and he appeals. Dismissed. Trotter & Odell, for appellant. Chas. G. Brown, Atty. Gen., for the State.

HARALSON, J. There must be a judgment of conviction to support an appeal in a criminal case. Ayers v. State, 71 Ala. 11. Here, the defendant pleaded not guilty. The minute entry recited, "Thereupon, the court proceeded to hear the evidence, without the intervention of a jury, according to law. And after hearing the same, finds the defendant guilty of assault and battery, and assessed a fine of $5.00."

This entry partakes more of a statement by the clerk of the action of the court, than of an expression by the court itself of its own action.

There must be some words, in an entry relied on as a judgment in a criminal case, to show that there has been a judgment rendered-certain and complete in itself; and while it is not necessary to adhere to the usual form,-"It is therefore considered and adjudged that the defendant is guilty as charged in the indictment" (or not guilty according to the verdict)-yet, there must be some words employed to show that a judg ment by the court has been pronounced on the verdict rendered. Wright v. State, 103 Ala. 95, 15 South. 506; Driggers v. State, 123 Ala. 46, 26 South. 512.

Here, the only word used to indicate a judgment, following the court's finding, is the word "finds," in the sentence, "And after hearing the evidence [the court] finds the defendant guilty," etc. This is no more than a declaration, that on hearing the evidence the court, trying the case without a jury, finds the defendant guilty. Finding him guilty is what the court did, in the place of a jury, if the case had been so tried. It was the verdict or finding of the court on the facts, which should have been followed by a judgment of conviction. Such finding did not constitute an adjudication of guilt, and is not sufficient to support the appeal taken. Let the appeal be dismissed. Dismissed.

MARKS v. STATE.

(Supreme Court of Alabama. Dec. 19, 1901.) CRIMINAL LAW-MINUTE ENTRY-JUDGMENT

APPEAL

The minute entry in a prosecution for assault and battery reciting, "Thereupon the court proceeded to hear the evidence without the intervention of a jury, and, after hearing the same, finds the defendant guilty of assault and battery," is insufficient to constitute an adjudication of guilt, so that no appeal will lie. Appeal from city court of Bessemer; B. C. Jones, Judge.

[blocks in formation]
[blocks in formation]

TYSON, J. The evidence shows that plaintiff drove upon the defendant's track without stopping, when his view of the track in the direction from which the train was approaching was obstructed; that his vehiele was immediately struck by the moving train. According to the testimony of the plaintiff himself, the view of those in charge of the train was obstructed by the same obstacle that shut out his own. After passing the obstacle which obscured his view, he discovered the approaching train within a few feet of him, and made an effort to cross the track ahead of it. There is testimony tending to show that he was seen by some of those in charge of the train after he had passed the obstruction, which was some six, eight, or ten feet from the track upon which his vehicle was struck. But there is no evidence tending in the remotest degree to show that the train, the speed of which was some 20 miles per hour, could have been stopped in time to have prevented the injury. On this state of facts, which are without dispute, it must be held that the injuries complained of are directly attributable to plaintiff's own negligence. Railway Co. v. Foshee, 125 Ala. 199, 27 South. 1006; Railroad Co. v. Martin, 117 Ala. 368, 23 South. 231. Affirmed.

NORILLE v. STATE. (Supreme Court of Alabama. Dec. 18, 1901.) CRIMINAL LAW-JUDGE'S CONCLUSION-VER

DICT-APPEAL-REVIEW.

Where a case is tried by the court without a jury, and the facts are not agreed on, and no special finding is made, the judge's conclusion stands as a verdict of the jury, and is not reviewable on appeal.

Appeal from criminal court, Jefferson county; Danl. A. Greene, Judge. Pasqual Norille was convicted of a crime, and he appeals. Affirmed.

John W. Chamblee, for appellant. Chas. G. Brown, Atty. Gen., for the State.

MCCLELLAN, C. J. This case was tried by the judge of the criminal court without a jury. It is sought by this appeal only to have his finding and conclusion of guilt on the testimony reviewed. The facts were not agreed upon, nor was there any special finding of them, nor request for such finding.

On this state of case the conclusion of the judge stands as a verdict of a jury, and cannot be revised by this court. Bell v. State, 75 Ala. 25; Knowles v. State, 80 Ala. 9; Wright v. State (Ala.) 29 South. 864; Feibelman v. State (Ala.) 30 South. 384. Affirmed.

J. SNOW HARDWARE CO. v. LOVEMAN et al.

(Supreme Court of Alabama. Nov. 28, 1901.)

EVIDENCE-BOOK ENTRIES.

When the entry of a memorandum of an executory contract for the delivery of goods in the future is made by a bookkeeper in accordance with the seller's instructions, at a time when the buyer was not present, and it is shown that the bookkeeper had no knowledge of the contract, or of the truthfulness of the memorandum, such entry is not admissible in evidence against the buyer.

Appeal from Tuscaloosa county court; J. J. Mayfield, Judge.

Action by the J. Snow Hardware Company against A. P. Loveman & Co. and others. Judgment for defendants, and plaintiff appeals. Reversed.

Foster & Oliver, for appellant. Henry A. Jones, for appellees.

DOWDELL, J. The appellant company, a corporation, sued the appellees (defendants) to recover damages for the breach of two contracts for the sale of cotton to appellant. The contracts were made by J. W. Sanders, representing the appellant, and E. P. Loveman the appellees. At the time of making the second of these two contracts, Sanders and Loveman were together in appellees' back office, no one else being present. There was dispute as to the terms of the second contract. Sanders testified that appellees sold his company at that time 200 bales of cotton, to be delivered in the month of February. Loveman testified that the amount sold was 100 bales. It was not denied that 100 bales had been delivered. At the time of making the second contract, after Sanders left the office, Loveman went into the front office, where his bookkeeper, John G. Brady, was, and told the latter to enter a memorandum of the sale. Loveman did not make the memorandum, and did not see it made; and Brady had no knowledge of the contract, or of the truthfulness of the memorandum. Sanders was not present when the memorandum was made, and had no knowledge of its 'contents. Brady testified that Loveman gave him the directions as to the entry of the memorandum in a very low tone of voice. On this evidence the court permitted the entry made by Brady to be introduced in evidence against the objection and exception of the appellant. Whether the memorandum, under such circumstances, was legal and competent evidence is the sole question for our consideration. The memorandum here was of an executory contract between the parties for the delivery of goods in the future, the same to be paid for upon delivery. Consequently such an entry would not fall within the "shop book rule," since that rule requires that the book itself must be the registry of business actually done, and not of orders, executory contracts, and things to

be done subsequent to the entry. Besides, the "shop book rule," as it is called, is confined to entries of goods sold and delivered, or of work and labor performed. 1 Greenl. Ev. § 118, note 2. The memorandum in the present case was nothing more nor less than hearsay evidence. It would certainly not have been competent for Brady to have testified to what Loveman told him as to the terms of the contract. The memorandum in this case is nothing more than that. Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; Jeffries v. Castleman, 68 Ala. 432; Hart v. Kendall, 82 Ala. 144, 3 South. 41. In the last case above cited-that of Hart v. Kendall-it was said by this court: "It is essential to the admissibility of entries made by a living witness that he shall be able to tell that at or about the time the entries were made he knew their contents, and knew them to be true, so that the entries and the testimony of the witness concurrently shall be equivalent to a present affirmation of the truth of their contents." This authority seems to be conclusive of the question here presented.

The court erred in its ruling, and for the error the judgment will be reversed, and the cause remanded.

[blocks in formation]

incumbrances existing in favor of complainant, that fact was for the consideration only of the insurer and defendant, for complainant has no concern with the adjustment of the loss between them. We know of no principle either of law or equity which would bind defendant to carry out her donor's contract to insure, in the absence of any agreement on her part to do so, even though the property in her hands was subject to complainant's rights therein as a conditional vendor. In the case of Miller v. Aldrich, 31 Mich. 408, relied on for complainant, not only was there an agreement on the part of the mortgagor that mortgaged property should be kept insured by the mortgagor for the mortgagee's benefit, but a policy had been taken out accordingly, and thereafter the mortgagor sold the property, and his vendee, in conjunction with the mortgagor, procured a discontinuance of that policy, and the issuance of another payable to the vendee alone. This was held to be a wrong to the mortgagee, in that it deprived him of that which had been already provided for his security; and to prevent such wrong the court of equity interposed by decreeing payment of the proceeds of the second insurance to the first mortgagor, whose rights he had helped to displace. It is true, it was said by the court that the agreement with the mortgagee to insure for his benefit "was, in equity, a sort of adjunct to the mortgage, and was binding on Chapman [the mortgagor], and on all others in his shoes, with notice." It was also said the vendee appears to have taken the place of the mortgagor, and to have occupied a position which required him to recognize and respect the terms of the agree ment intended to fortify the mortgagee's security under the mortgage; but it was further said that, instead of recognizing and respecting it, he joined in the transaction to set it aside, and to so place himself that if the mortgaged property should burn he might put the mortgage money in his own pocket. Thus it seems to have been upon the vendee's participation in the displacement of a security already provided, rather than upon any

Espy, Farmer & Espy, for appellants. J. contract obligation, that the proceeds were B. Dell, for appellee.

SHARPE, J. Unless the mere fact that Mrs. Shadgett received the piano as a gift from her husband, with knowledge of his obligation to insure it for complainant's benefit, placed her in the shoes of her husband with respect to that obligation, it is impossible to recognize any principle upon which complainant can claim the insurance money in controversy. The contract of insurance was wholly between the defendant and the insurance company, and was personal, in the sense that the money agreed to be paid in case of loss was not to stand in the place of the piano itself, but was a mere indemnity against the loss of defendant's interest therein. If her interest was small, on account of

in that case held to inure to the mortgagee's benetit. A contract for insurance made for the insurer's indemnity only, as where there is no agreement, express or implied, that it shall be for the benefit of a third person, does not attach to or run with the title to the insured property on a transfer thereof personal as between the insurer and the insured. In such case strangers to the contract cannot acquire in their own right any interest in the insurance money, except through an assignment or some contract with which they are connected. Vandegraaff v. Medlock, 3 Port. 389, 29 Am. Dec. 256; May, Ins. § 449; Carter v. Rockett, 8 Paige, 437; Dunlop v. Avery, 89 N. Y. 592; Nordyke & Marmon Co. v. Gery, 112 Ind. 535, 13 N. E. 683, 2 Am. St. Rep. 219. The foregoing and many other au

thorities recognize the doctrine that where a mortgagor has contracted to insure for the benefit of the mortgagee, or to pay to him the proceeds of a policy, and, in disregard of the contract, effects insurance in his own name, and resists payment of the proceeds to the mortgagee, equity will, upon the principle of treating as done that which should have been done, establish a lien on such proceeds in favor of the mortgagee. It may be conceded that a conditional purchaser or his vendee, contracting to like effect for the conditional vendor's benefit, would be liable to the enforcement of a similar equity; but here there was no undertaking on the part of Mrs. Shadgett to either insure for complainant's benefit, or to assume her husband's obligation to so insure, and mere knowledge of that obligation did not impose it upon her.

The bill has not averments appropriate to present a case of fraud, and is without equity. It will be here dismissed, but without prejudice, and the decree appealed from will be reversed. Complainant will pay the costs in this court and in the chancery court. Reversed and rendered.

No separate question as to the quantum of damages appears to have been raised on the main trial, and we would hesitate to affirm that the grounds assigned for a new trial are sufficiently definite to raise the question in that proceeding. See Winter v. Judkins, 106 Ala. 259, 17 South. 627. But apart from that consideration, the evidence does not clearly justify the contention here made that the plaintiff could by reasonable efforts have reduced his damages by earnings in work in the same neighborhood similar to that provided for in the contract alleged to have been made and broken.

The evidence claimed to have been first discovered after the trial is, at most, of an inconclusive character, consisting wholly of admissions made by plaintiff to third persons, such as the rules of evidence declare should be received and weighed with great caution. Allowing scope for that reasonable discretion which the trial court may lawfully exercise in acting on motions for new trials, it is not apparent that error was committed in overruling the motion in question.

Judgment affirmed.

JONES et al. v. TUCKER. (Supreme Court of Alabama.

Dec. 17, 1901.)

NEW TRIAL-SUFFICIENCY OF EVIDENCENEWLY-DISCOVERED EVIDENCE.

1. Where there is no palpable failure of evidence, but merely a conflict thereof, an order denying a new trial because of the insufficiency of the evidence will be sustained.

2. Where newly-discovered evidence consists wholly of admissions by plaintiff to third persons, an order denying a new trial asked on the ground of newly-discovered evidence will be sustained.

Appeal from circuit court, Coffee county; John P. Hubbard, Judge.

Action between A. R. Jones & Co. and others and W. M. Tucker. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

P. N. Hickman, Claude Riley, and Espy, Farmer & Espy, for appellant. Sollie & Kirkland and J. M. Loflin, for appellees.

SHARPE, J. So far as the motion for a new trial questions the propriety of the verdict, the rule applicable on this appeal is that laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 738, where it was, in effect, declared that, where there is not a palpable failure of evidence to support the finding of the jury, the action of the trial court in upholding the verdict will not be deemed erroneous. Here there is no such failure of evidence. On the main question of whether the contract sued on was in fact made, there was a mere conflict of evidence, such as was proper for solution by the jury alone.

SOUTHERN RY. CO. v. POSTEN. (Supreme Court of Alabama. Nov. 20, 1901.)

KILLING STOCK.

In an action for killing a mare on a railroad track which was straight in each direction for many yards, it was not error to refuse an affirmative charge for defendant.

Appeal from circuit court, Walker county; A. A. Coleman, Judge.

Action by B. B. Posten against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Smith & Weatherly, for appellant. M. L. Leath and McCollum & McGregor, for appellee.

DOWDELL, J. This was an action for damages for the negligent killing by defendant's train of plaintiff's mare, and for an injury done to a colt. The cause was tried on the plea of not guilty. The only error assigned is that of the refusal of the court to give the general affirmative charge as requested by defendant. The only evidence offered on the trial was that of the plaintiff and one J. P. Casey, who testified in behalf of the plaintiff. The defendant offered no testimony. Without repeating what was said by these witnesses, we think the facts testified to by them made out a sufficient prima facie case to require the court to submit the question of the negligent killing of the mare and the injury of the colt to the jury. The facts in this case are similar to the facts in the case of Railway Co. v. Boyd, 124 Ala. 525, 27 South. 408, and what was there said with reference to the giving or refusal of the general affirmative

« PreviousContinue »