PAYNE v. LONG.

(Supreme Court of Alabama. Dec. 18, 1901.) WITNESSES-COMPETENCY OF PARTIESTRANSACTION WITH PERSON AFTERWARDS DECEASED.

1. Testimony of a party that he never gave any other note to deceased or any one else does not involve a transaction with deceased, and is not within Code, § 1794, making parties competent as witnesses except as to transactions with persons afterwards deceased.

2. That a third person was present and heard all that occurred between a party and a person afterwards deceased, and testified to what he heard as a witness for the other party, does not permit the first party to state his version of the conversation.

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

Action by E. W. Payne, executor, etc., against B. M. Long. From a judgment for defendant, plaintiff appeals. Reversed.

Estes & Smith and W. C. Davis, for appellant. Coleman & Bankhead, for appellee.

TYSON, J. The statement of defendant, as a witness, that he never gave any other note with a condition in it to plaintiff's testator or any one else, involved no transaction with the deceased, and is not within the exception to the competency of parties as witnesses under section 1794 of the Code. Morrissett v. Wood, 123 Ala. 384, 26 South. 307; Gamble v. Whitehead, 94 Ala. 335, 11 South. 293; Wood v. Brewer, 73 Ala. 259. The court, against the objection of plaintiff, permitted the defendant to state his version of a conversation and all else that occurred in the Florence Hotel between himself and the plaintiff's testator for the purpose of impeaching the statements of Estes, who was present, heard and saw all that occurred between them, and who had testified to what he saw and heard as a witness for plaintiff. Manifestly, the direct office and purpose of this testimony was to weaken the evidence given of a transaction with or statement by plaintiff's testator with defendant, which was declared in Miller v. Cannon, 84 Ala. 59, South. 204, to be expressly within the reason and spirit of the prohibition of the statute. The ruling of the trial court on this point was doubtless influenced by a dictum in the case of Frank v. Thompson, 105 Ala. 211, 16 South. 634, and, if the dictum in that case on this point be sound, the ruling was perhaps correct. But what was there said is in direct conflict with Miller v. Cannon, supra, and no case is cited to support it. Doubtless the case of Miller v. Cannon was overlooked. However, after careful consideration, we are clearly of the opinion that Miller v. Cannon announces the correct rule, and that the dictum in Frank v Thompson is wrong. We must therefore decline to follow it. With this evidence eliminated, the testimony shows, without dispute, a ratification by defendant of the alleged alteration

of the note sued upon. Payne v. Long, 121 Ala. 385, 25 South. 780.

It is unnecessary to consider any of the other assignments of error.

There is no merit in the objection found in brief of counsel for appellee that the bill of exceptions is no part of the record because of the want of authority in the judge to make the order extending the time for signing it. Code, § 619.

Reversed and remanded.

SHACKELFORD v. M. C. KISER CO. (Supreme Court of Alabama. Nov. 27, 1901.)

PRINCIPAL AND AGENT-POWER OF ATTORNEY-IMPLIED ASSIGNMENT.

1. A power of attorney to collect all sums due or to become due to the principal on iron shipped or to be shipped by him, to be applied to the payment of commissions, and the current account between the parties under a then existing contract, does not transfer the ownership of the proceeds of iron furnished under a contract entered into after the execution of the power of attorney.

2. Where a debtor does not accept an implied request of his creditor to pay the debt to a third person, it does not constitute an implied assignment of the debt to the latter.

Appeal from city court of Anniston; Jas. W. Lapsley, Judge.

Suit between W. C. Shackelford and the M. C. Kiser Company to determine the ownership of a certain sum garnished by the M. C. Kiser Company as the debt of a third person, and claimed by the said Shackelford. From a judgment in favor of the former, the latter appeals. Affirmed.

Caldwell & Johnston and Ward & Houghton, for appellant. Coleman & Blackburn, for appellee.

TYSON, J. This controversy is between a garnishing creditor and a claimant of an admitted sum due by garnishee to the defendant debtor. The claimant bases his right to the money upon the stipulations contained in a power of attorney given him by the | debtor, constituting him the debtor's true and lawful attorney in fact, coupled with the authority "to demand, receive, collect, and receipt for any and all accounts, demands. claims, or dues now in existence, or hereafter to be created for and on account of any iron ore shipped or to be shipped by me, or in the name of the Alabama Mining Company, to the Sloss Iron & Steel Company," etc., to be applied to the payment of ten cents per ton commissions and current account between the parties, etc. The date of the execution of this paper is April 26, 1900. At that time there existed between the debter and the garnishee a contract under which the former was bound to deliver the ore mentioned in the power of attorney, and the latter was obligated to receive and pay for it at a stipulated price per ton. This contract expired on the 31st day of May, 1900. On the 12th of June, 1900,

the parties entered into another contract of similar import, though containing substantially different provisions, with respect to other matters, not necessary to be pointed out. It was under the performance of the obligations of this latter contract that the indebtedness of the garnishee arose. It seems to be conceded that the power of attorney, coupled with an order on the garnishee given by the debtor to the claimant, had the effect of assigning to the claimant all moneys due by the garnishee under the first contract. Whether this be true or not, we need not and do not decide. The question presented by the record is, did the power of attorney transfer to claimant the ownership of the money accruing to the debtor under the second contract? It will be observed, from an examination of the dates given above, that the power of attorney was executed more than one month and a half before this contract was entered into. At that time there was no obligation on the part of the garnishee to enter into this contract, and none on the part of the debtor. There was therefore no subsisting engagement under which the acI count or demand could arise. The money claimed by appellant depended, at the date of the alleged assignment to him, altogether upon a future engagement, whether it would ever become due. Its future accrual constituted a mere possibility, coupled with no interest. It certainly had no actual existence; nor could it have a potential one, in the absence of some engagement out of which it was to arise. It is true, the iron ore had an existence, but the power of attorney does not purport to convey any interest in it. The attempt was to assign or transfer the proceeds which might arise under a contract to be made in the future for its sale. Mulhall v. Quinn, 1 Gray, 105, 61 Am. Dec. 414; Eagan v. Luby, 133 Mass. 543; Herbert v. Bronson, 125 Mass. 475; Purcell's Adm'r v. Mather, 35 Ala. 570, 76 Am. Dec. 307; Skipper v. Stokes, 42 Ala. 255, 94 Am. Dec. 646. "A power of attorney, although irrevocable in terms, does not amount to an assignment when no assignable interest exists at the time." Mulhall v. Quinn, supra.

Having shown that no title to the money in controversy passed to claimant under the order and power of attorney, the next question is, did the title pass under an implied contract of assignment? It is insisted that it did. Without deciding whether an assignment can or may be raised by implication, so as to pass the title to this money, it is a sufficient answer to the contention to say that there is no evidence that the garnishee, the debtor, ever accepted the implied requestif it ever existed and if such a request could be accepted-of its creditor to pay this money to the claimant. Until payment or acceptance, the request, if it be implied, of the creditor of the garnishee, was revocable at the option of such creditor. And until acceptance, it is clear that Shackelford, the claim

TRIAL-EXCEPTIONS-APPEAL-REVIEW.

1. Where no exception was reserved to the court's action in ordering the clerk to refund to defendant money deposited by him on the filing of his affidavit under the statute suggesting a claimant, after said affidavit had been stricken on plaintiff's motion the court's action would not be reviewed on appeal.

2. When on appeal the bill of exceptions does not contain all the evidence, it will be presumed that the giving of the affirmative charge for defendant was warranted by other evidence.

Appeal from circuit court, Lamar county; S. H. Sprott, Judge.

Action by W. T. Walker against W. F. Clardy. From a judgment for defendant, plaintiff appeals. Affirmed.

Daniel Collier, for appellant. Nesmith & Nesmith, for appellee.

DOWDELL, J. There was no exception reserved to the action of the court in ordering the clerk to refund to the defendant the money which had been deposited by him upon the filing of his affidavit under the statute suggesting a claimant, after said affidavit, on motion of the plaintiff, had been stricken from the file.

The only other assignment of error is as to the giving of the affirmative charge requested by the defendant. The case was tried under the plea of the general issue. The bill of exceptions does not purport to set out all of the evidence. Under this state of the record, it has been repeatedly held by this court that the presumption will be indulged that there was other evidence which authorized and warranted the giving of the charge as requested. See Sanders v. Steen (Ala.) 29 South. 586, where the authorities are collated, and, in addition to the authorities there cited, see, also, Fleming v. Ussery, 30 Ala. 282.

Let the judgment of the circuit court be affirmed.

WESTERN UNION TEL. CO. v. AYERS. (Supreme Court of Alabama. Dec. 17, 1901.) TELEGRAM-FAILURE TO DELIVER-MENTAL ANGUISH-RELATIONSHIP-BROTHERS

IN-LAW-MOTION TO STRIKE.

1. A father cannot recover for mental anguish occasioned by a telegraph company's negligent failure to deliver a message, causing the absence of a brother-in-law at the death of a daughter; the relationship not being such

that any addition to the father's suffering could be presumed.

2. Kulings on motions to strike pleadings can only be reviewed by bill of exceptions.

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by H. L. Ayers against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Walker, Tillman, Campbell & Porter, for appellant. Ward & Drennen, for appellee.

DOWDELL, J. The appellee, H. L. Ayers, sued the appellant, Western Union Telegraph Company, for negligent failure to deliver a telegraphic message. In each count of the complaint mental anguish and suffering is laid as an element of damage. The message which was delivered to the appellant company for transmission was as follows: "Birmingham, Ala., Oct. 10, 1899. To W. H. Gill, Morris, Ala.: Ina not expected to live. Come at once. [Signed] H. L. Ayers." Ina, the person named in the message, was an infant daughter of H. L. Ayers. W. H. Gill, the person to whom the message was addressed, is the brother-in-law of H. L. Ayers, and uncle of the said Ina. The message was not delivered to Gill in time for him to reach the home of appellee before the death of appellee's daughter Ina, which occurred about 10:48 p. m. of the day on which the message was sent. It is averred in the complaint that the mental pain and anguish suffered by the plaintiff, and for which damages are claimed, was on account of the absence of Gill from the bedside of plaintiff's daughter Ina in her dying moments, and that this was caused by the negligence of the defendant in transmitting and delivering the telegram. This is the first time, so far as we are advised, that the precise question here presented has been before this court. In all of the cases which have heretofore been considered by this court where damages for mental suffering have been claimed and allowed on account of negligence in the transmission or delivery of telegraphic messages, there existed a relationship of the closest and most affectionate kind, such as husband and wife, parent and child, or brother and sister, between the sendee and the person concerning whom the message was sent, and, furthermore, generally the party suing being the one who was prevented, by reason

mental pain and anguish on account of her approaching death was most natural, and the law would presume as much; but how the absence of a brother-in-law on such occasion could add to the intensity of his anguish and mental suffering, or how a jury could determine such a question, is difficult to conceive or understand. We are unwilling to extend the doctrine of recoverable damages on account of mental pain and suffering to cases of this character, wherein there does not exist that close degree of relationship, such as parent and child, husband and wife, brother and sister, from which natural love and affection is presumed. To do so would, in our judgment, tend to promote and encourage a species of litigation more or less speculative in its nature, and unjust and oppressive in its results. The weight of authority, as well as sound reason, seems to be against it, and we prefer to follow the doctrine as laid down upon this question in the following cases: Telegraph Co. v. Steinberger (Ky.) 54 S. W. 829; Same v. Luck (Tex. Sup.) 41 S. W. 469, 66 Am. St. Rep. 869; Same v. Coffin (Tex. Sup.) 30 S. W. 896; Same v. McMillan (Tex. Civ. App.) 30 S. W. 298; Same v. Garrett (Tex. Civ. App.) 34 S. W. 649; Same v. Gibson (Tex. Civ. App.) 39 S. W. 198; Same v. Brown (Tex. Sup.) 10 S. W. 323, 2 L. R. A. 766; Morrow V. Telegraph Co. (Ky.) 54 S. W. 853,-rather than that laid down in the case of Cashion v. Telegraph Co. (N. C.) reported first in 31 S. E. 493, and again in 32 S. E. 746, 45 L. R. A. 160.

Rulings upon motions to strike pleadings can only be reviewed here when properly presented by bill of exceptions. The bill of exceptions in the present case contains no reference to the action of the court on motions to strike. Since the question we have considered was properly reserved on objec tions to evidence, and by charges requested by the defendant, there exists no necessity for considering the ruling on the demurrers by which it was sought to raise the same question. Goldsmith v. Picard, 27 Ala. 142.

The rulings of the trial court not being in conformity with the views above expressed, the judgment will be reversed, and the cause remanded.

BOWEN v. STATE.

present at the deathbed or funeral of such deceased relative. In cases where the damages are claimed for mental pain and suffering by the sender of the message on account of the absence of the sendee resulting from the negligence of the carrier, a like close and affectionate relation must exist between the sender, sendee, and the person concerning whom the message is sent. That the father of Ina in the present case suffered great

CRIMINAL LAW-"FLYING JENNIES"-LICENSES-ACCESSORY.

One who collects fares from those riding on a "flying jenny" aids and abets in the operation of the same, and is liable for the penalty for violating Code 1896, § 4122, subd. 49, requiring the operator of each flying jenny to pay a certain license tax; and this whether he owned an interest in the flying jenny, or only received compensation for the services performed.

Appeal from Macon county court; M. B. Abercrombie, Judge.

Harvey Bowen was convicted of an of fense, and he appeals. Affirmed.

Chas. G. Brown, Atty. Gen., for the State.

DOWDELL, J. The record does not set out the demurrer, and, for aught that appears, it may have been entirely frivolous. Moreover, the offense as charged in the affidavit is sufficiently described to meet the requirement of the law in such cases, and we are unable to see that it was subject to demurrer.

The defendant was tried and convicted for a violation of subdivision 49, § 4122, Code 1896. The evidence, without dispute, shows that the defendant collected the fares from those riding on the "flying jenny." In this he aided and abetted in the operation of the same, and it is wholly immaterial whether he owned an interest in the flying jenny, or received compensation for the services he performed. One who aids and abets in the commission of a misdemeanor is guilty as a principal under the law. Gilmore v. State, (Ala.) 28 South. 384; Keller v. State (Ala.) 26 South. 323; Cagle v. State, 87 Ala. 38, 6 South. 300.

The court committed no error in refusing the written charges requested by the defendant.

The judgment of the county court is affirmed.

1. Where it was a servant's duty to assist in pushing tram cars of coal to the end of a trestle, where they were emptied, and blocks of wood, so placed that the wheels would come up against them, were nailed to the trestle to assist in tipping the cars, such blocks being used instead of an appliance called a "tipple," and one of the blocks split and caused the car to swerve so as to injure a servant, the defectiveness of the blocks, and not the absence of the tipple appliance, was the proximate cause of the injury.

2. The danger involved being open to ordinary understanding, the servant assumed the risk incident to emptying the cars.

3. Where a foreman having charge of certain work directs another to act in his place, the former having no authority to delegate his authority, the master cannot be held liable to a servant for injuries from the negligence of such acting foreman; he being no more than a fellow servant.

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

Action by John C. Boyd against the Indian Head Mills of Alabama. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

McCollum & McGregor, for appellant. Coleman & Bankhead, for respondent.

SHARPE, J. Plaintiff was employed by defendant to assist in pushing tram cars of coal from a mine which was being opened along and to the end of a trestle, and there emptying the car. The car had to be emptied by tipping or overturning it so that its contents would fall below. Ordinarily, in operation of mines so situated, an appliance called a "tipple," which tips or upturns a car when the same is run upon it, is used for emptying; but none had been attached to this trestle. Instead of it, blocks of wood, shaped and placed so the car wheels would come against them, were nailed to the trestle. In assisting to empty a car in this way, one of the blocks depended on to hold the wheels split away, and caused the car to swerve against the plaintiff, whereby he was thrown from the trestle, and received the injury for which he sues.

In different counts the complaint imputes negligence to the defendant in failing to have a tipple; in using weak blocks as a tipple; in not furnishing plaintiff a safer place whereon to work; also in striking plaintiff with the car; and, again, for the fault of one intrusted by defendant with superintendence, In the evidence we have failed to find support for either of these charges of negligence. It is plain that defectiveness of the blocks which gave way under pressure of the car wheels was the proximate cause of the injury. The other conditions, including the absence of any tipple and the character of the trestle, were open to ordinary observation, and must have been known to defendant. Whatever danger to plaintiff they involved was open to ordinary understanding, and must have been fully understood by him. He must therefore be held to have assumed the risk incident to emptying cars without a tipple. As a general rule a risk knowingly and voluntarily assumed by an employé cannot by him be imputed to negligence, as to the employer. Electric Co. v. Allen, 99 Ala. 359, 13 South. 8; Eureka Co. v. Bass, 81 Ala. 201, 8 South. 216, 60 Am. Rep. 152; Bailey, Pers. Inj. § 455 et seq.; Railway Co. v. Guyton (Ala.) 25 South. 34.

The blocks which proved defective were placed and used by direction of one John Gray. He was acting as foreman, but only by request or direction of his father, William Gray, who was the person employed by defendant to act as foreman. William Gray deposed that he had no authority to so appoint his son, and there was no evidence to discredit his statement. That a foreman's authority extends to the placing of others in authority may in some cases be implied, as where the character of the work of which he is given charge necessitates it, and such dele quiescence in its exercise; but here there is gation of authority may be inferred from acno evidence from which such implication or inference can arise. Under the evidence, such negligence as may be attributed to John Gray in respect of using or placing the blocks

to hold car wheels or directing the work can be given no more effect than the fault of a fellow servant, such as neither the common law nor the statute (Code, § 1749) makes the common employer liable for.

The rulings on pleadings and evidence assigned as error were not such as to hinder the plaintiff in presenting and proving his case, and the whole evidence shows, as a legal conclusion, that the plaintiff was without right to recover under either count of the complaint. Consequently it appears that those rulings could not have injured the plaintiff so as to give cause for reversing the judgment.

1. A person contracting with a de facto corporation in the exercise of its corporate fuuctions will not be heard to deny the existence of such corporation in an action on the contract against its stockholders.

2. A declaration of incorporation filed in the office of the probate judge as required by Code, § 1252, is not invalid because the certificate indorsed thereon, reciting its filing, designates the instrument as a "conveyance," and not as a "declaration," as the mistake is a mere clerical error.

3. The failure of the probate judge to sign his name to such certificate does not invalidate the incorporation, as, in the absence of statute, a paper is filed whenever it is delivered to and received by the proper officer.

4. Where the only defect in proceedings for the incorporation of a private corporation is the failure of the probate judge to record the certificate reciting the requisite subscription to the capital stock and the election of officers and directors, required by Code, § 1255, to be filed with and recorded by the probate judge, and to issue a certificate of incorporation required by section 1255, the proceedings, when acted on by the company, are sufficient to create a corporation de facto, in the absence of evidence of fraud.

5. The declaration of one partner not made in the presence of his copartner is inadmissible to prove the existence of partnership.

6. Where the only defect in proceedings to incorporate a company is the failure of the probate judge to record a certificate showing the subscription to the capital stock and the election of officers and directors, as required by Code, § 1255, and to issue a certificate of incorporation, as required by section 1255, and the former certificate is on file in the office of the probate judge, it is constructive notice that the corporation had at least a de facto existence.

7. The act of the president of the corporation in withdrawing the certificate of the capital stock subscription and the election of officers and directors do not affect the de facto existence of the corporation.

8. The failure of a de facto corporation to pay the state and county licenses to do business prior to the purchase of certain goods does not affect its status as a de facto corporation, and render its stockholders liable as partners. 9. The failure of such de facto corporation to pay the incorporation fee prescribed by Code, 31 So.-6

§ 1287, does not prevent it from being a de facto corporation.

10. Stockholders of a de facto corporation, not intending or agreeing to become partners, are not liable, as partners, for the corporation debts.

Appeal from circuit court, Lauderdale county; E. B. Almon, Judge.

Action by the Owensboro Wagon Company against R. L. Bliss and others. From a judgment in favor of the defendants, the plaintiff appeals. Affirmed.

John T. Ashcraft and Robt. E. Simpson, for appellant. C. E. Jordan and Emmet O'Neal, for appellees.

HARALSON, J. "A corporation de facto exists, when from irregularity or defect in the organization or constitution, or from some omission to comply with the conditions precedent, a corporation de jure is not created, but there has been a colorable compliance with the requirements of some law under which an association might be lawfully incorporated for the purposes and powers assumed, and a user of the rights claimed to be conferred by the law-when there is an organization with color of law, and the exercise of corporate franchises." Snider's Sons' Co. v. Troy, 91 Ala. 224, 8 South. 658, 11 L. R. A. 515, 24 Am. St. Rep. 887; Central Agricultural & Mechanical Ass'n v. Alabama Gold Life Ins. Co., 70 Ala. 120.

"Corporations may exist either de jure, or de facto. If of the latter class, they are under the protection of the same law, and governed by the same legal principles as those of the former, so long as the state acquiesces in their existence and exercise of corporate functions. A private citizen, whose rights are not invaded, who has no cause of complaint, has no right to inquire collaterally into the legality of its existence. This can only be done, by a direct proceeding on the part of the state, from whom is derived the right to exist as a corporation, and whose authority is usurped." Id.; Lehman, Durr & Co. v. Warner, 61 Ala. 455.

It is also well settled, as a corollary to the foregoing principles, that when one contracts with a corporation, which is in the exercise of corporate functions, but which is a de facto corporation merely, he will not, in a suit by the corporation on a contract made by him with it in its corporate name, be allowed to deny and disprove the rightfulness of its existence. 4 Am. & Eng. Enc. Law, 198; Swartwout v. Railroad Co., 24 Mich. 390. In the case last cited, Cooley, J., declares, that "it is plainly a dictate, alike of justice and public policy, that in controversies between the de facto corporation and those who have entered into contract relations with it, as corporators or otherwise, that such questions should not be suffered to be raised." Snider's Sons' Co. v. Troy, supra; Cahall v. Association, 61 Ala. 232. In the Snider and Troy Case, it was further held, that the same principle