Barbour County v. Horn

48 Ala. 566

• Court: Supreme Court of Alabama
• Decided: June 15, 1872
• Status: Published

Opinion

PETERS, J.

This was an action on the case for damages occasioned by a fall from an insecure bridge, built by contract with the commissioners court in 1852, before the Code of Alabama went into effect as the law of the State, There is but one count in the complaint, and this is founded wholly upon our statutes. There was a demurrer to the complaint which assailed both the sufficiency of the statement of facts set forth in the count, and the formality of $ie statement. The demurrer was overruled, and the parties went to trial on the plea of the general issue, with leave to give all proper special matter in evidence to the jury, There was a verdict for ten thousand dollars for the plaintiff below, against the defendant, and judgment accordingly for this sum and costs. From this judgment the county of Barbour appeals to this court, and here assigns several errors on the overruling of the demurrer in answer to the plaintiff’s complaint, and certain other proceedings in the court below in the charges and rulings adverse to the said defendant, as shown in the bill of exceptions taken on the trial below.

The demurrer to the complaint involves the most prominent question in the case as now made before this court. And this requires a construction of the statute upon which the right to recover on the facts stated in the complaint depends. And I proceed at once to the discussion which is thus urged upon the court.

The law, before the promulgation of the Code, which defines the powers of the court of county commissioners, or commissioners of revenue and roads, is found in Olay’s Digest. This embodiment of onr statutes includes “ all the statutes of a public and general nature in force at.the close of the session of the general assembly in February, 1848.” Title-page Clay’s Digest. The law, as found in Clay’s Digest, authorized the commissioners court to “ exercise all the power in relation to roads, bridges, highways, and ferries and causeways” which were at that time “ given to and exercised by the orphans or county court.” — Clay’s Digest, p. 149, § 1. This grant of jurisdiction seems to have been taken from the act to repeal and amend an act “ to regulate the proceedings in the courts of law and equity in this State,” which bears date June 14, 1821. — Toulmin’s Laws of Ala. pp. 191, 200, § 28. In 1839, the legislature passed another statute defining the powers of the commissioners court, in which it is commanded, that “in all cases where there is no legislative enactment on the subject, the commissioners courts of the different counties shall have power and authority to adopt rules and regulations in relation to toll-bridges, causeways and ferries, as well as ways and public roads, and may, at any time, levy a tax to build causeways and bridges, when in their opinion the public good requires it; when the work is too great tobe done by the proper overseer and his hands, or when no one applies, as hereinafter prescribed, to establish the same; Provided, That when ever, any such work is necessary on the line between two counties, the same shall be done at the mutual expense of said counties, in proportion to the amount of taxable property in each.” — Clay’s Dig. p. 513, § 25. .This enactment clothed the commissioners court with power and authority to adopt rules and regulations in relation to toll-bridges, causeways and ferries, as well as (private?) ways and public roads, and to levy taxes to build causeways and bridges, other than toll-bridges and toll-causeways. These latter were not to be built by a levy of a tax, because they were established under a different section of the same statute, and the “owner” built them, and gave bond to keep them in repair for travel and the transportation of the property of the passengers over them. This distinction is clearly indicated in the section of the act already quoted above, by the words “ when no one applies, as hereinafter prescribed, to establish the same.” But under the authority to allow or license the establishment of toll-bridges and toll-causeways, the power was also given to take a guaranty by bond or otherwise, that the same shall continue safe for the passage of travelers and other persons for a stipulated time. The portion of the act conferring this authority is in these words: “ When, in the opinion of the commissioners court, it is expedient to grant a license to any applicant to establish a ferry, toll-bridge, or causeway, they may do so, and shall at the same time prescribe the rate of toll or ferriage, and also require the applicant to enter into bond, with good security, in a sum not exceeding fifteen hundred dollars, payable to the judge of the county court of the proper county, and his successors in office, and conditioned, (in ease of a ferry,) that the applicant will constantly provide and keep a good and sufficient boat or boats, and ferryman or hands, and keep the banks on each side of the water course in good repair; but in case of a toll-bridge or causeway, that it shall be well built according to the grade of the road it is on, and kept in good repair so that it may be passed at all times with safety and convenience; which bond they may, if they deem it necessary for better security, require the applicant to renew at any time on giving him ten days notice; and if he fail to do so, revoke his license. And should any person at any time sustain damages in consequence of the owner not having complied with the conditions of his bond, the person damaged may bring an action of debt or covenant on said bond in the name of the judge of the county court and recover damages to the extent of the injury sustained, to be applied to the use of the person injured, and such bond shall not become void by reason of the first or any subsequent recovery.” — Clay’s Digest, page 513, § 26. These two sections of the statute above referred to, so far as I have been able'to ascertain from my own investigations, with the aid of the eminent counsel engaged on both sides of this cause, include all the law upon the subject of bridges and causeways authorized to be built by contract with the commissioners court at the time the bridge in this case was erected, and up to the promulgation of the Code of Alabama. This law evidently divides bridges and causeways authorized to be established by the commissioners court into two classes. The one class consisting of toll-bridges and toll-causeways, and the other class consisting of free bridges and free causeways. In the former class of cases, the commissioners court were authorized and required to take guaranties, by bond’of the “owner” or builder of the bridge or causeway, to keep the same in proper repair for safe travel over the bridge or causeway so built. In the other class of cases, a tax was authorized to be levied by the commissioners court to pay the cost of the erection of such free bridge or free causeway, in certain cases, but no authority is given to take any bond of the builder to keep any such free bridge or free causeway in proper repair for travel after the same may have been finished. As soon as such free bridge or free causeway was finished and received by the commissioners court and opened for travel over them, they became a part of the public highways of the State, which passed at once under the care and supervision of the overseer of the public roads of the counties in which they might lie. — Rev. Code, § 1341; Clay’s Digest, p. 512, § 21. The guaranty mentioned in the complaint is not alleged to be a part of the contract with the commissioners court to build the bridge. — -Clay’s Dig. p. 511, § 19. And the evidence tends strongly to show that it was taken after the bridge was built and paid for. The commissioners court had not at that time authority to take such a bond. The act was ultra vires. It had no effect. Pearce v. M. & l. R. R. Co. et al., 21 How. 441, and cases there cited. Besides, the bond was not such a bond as is indicated for a toll-bridge, either in the amount of its penalty or its condition. It was a nugatory act, and void.—21 How. 441, supra. It had no effect whatever. And the enactment subsequently passed, which is found iq the Revised Code, giving a remedy against the county for damages resulting from an unsafe bridge or causeway which had been erected by contract with the commissioners court, with a guaranty, by bond or otherwise, that such bridge or causeway shall continue safe for the passage of travelers and other persons for a stipulated time, was intended to apply to toll-bridges and toll-causeways; because the guaranty by bond there referred to is a valid guaranty by valid bond, and not a bond taken without authority; but such an one .as will support an action in favor of the party injured against the makers of the bond for damages to person or property before the expiration of the period of limitation, during which the bridge or causeway should remain safe for travel. — Revised Code, § 1396. This is also very clearly the legislative construction of the section of the Revised Code last above referred to; as is shown in the amendment of said section by the act of February 18th, 1870, in which free bridges are put upon the same footing with toll-bridges and toll-causeways. This amendment would not have been made unless there had been a deficiency in the original act.- — Pamph. Acts 1869-70, p. 148, Act No. 141. Moreover, if the period for the limitation, beyond which the liability of the obligors in the bond for the enforcement of the guaranty would have ceased, had not expired, and the action was brought upon the bond by the obligors, and not against the county, then it would be necessary to show from the statute that the taking of the bond itself was such a transaction as the commissioners court had authority to accomplish. Without such authority, the bond would be a nullity. — 21 How. 441, supra. At the date of the bond in this case, the authority of the commissioners court depended solely upon the statute of 1839. In this act nothing is said of power to take a bond for enforcement of a guaranty as to the continued safety of the bridge for a stipulated length of time, when the bridge was not a toll-bridge. — Clay’s Dig. p. 513, §§ 25, 26; also, Rev. Code, §§ 1383, 1385,1390. Even the authority of the court of county commissioners under the Code is not a, general jurisdiction, but it is required “to be exercised in conformity with tbe provisions” of tbe Code.— Rev. Code, § 831. This puts the power wholly upon the statute law. And there is no provision of the Code, that I have been able to find, which gives authority to take such a bond as that mentioned in this case. — Rev. Code, §§ 1310, 1341, 1397. In such an action against the obligors, this court would be compelled to declare this bond void; that is, a nullity. This is clearly not such a bond as that intended in the Revised Code. — Rev. Code, § 1396. And the complaint is deficient in failing to allege that the commissioners court had authority to take the bond relied on, or that the bridge mentioned in the pleadings was a toll-bridge. Barbour County v. Horn, (in MSS.) The demurrer was, therefore, erroneously overruled. It should have been sustained, with leave to the plaintiff in the court below to amend his complaint as he might be advised and the facts of his case would justify. — Rev. Code, § 2657, I think that it scarcely admits of doubt, that the officers of the county, who are its corporate agents, have no power to subject the county, by their acts or their failure to act, to a suit for damages, unless the power is expressly or impliedly given by statute. — Covington County v. Kinney, 45 Ala. Rep. 176; Fowle v. Common Council of Alexandria, 3 Pet. 368. Nor could they transfer to the builder of a public or free bridge the duty of keeping it in repair and safe for travel, which duty belonged to the overseer of the public road. — Rev. Code, § 1341; Clay’s Dig. p. 512, § 27, The charge of the court which was given, without the request of either party, on the trial below, was also based upon a misapprehension of the law, as it existed in 1852, in reference to the powers of the commissioners court to contract for the building of free bridges. It is opposed to the construction above given, and is erroneous. Eor these errors the judgment must be reversed, And this opinion might here conclude, if it were known that the plaintiff in the court below would refuse to make any further amendment to his complaint. But as ttpg can not be known to this court, nor what case may be made on an amended complaint, there are some other questions raised by the charges given and refused on the trial below, that may come up on a new trial, and they should be settled on this appeal. The one is, as to the date from which the “stipulated time” for the continuance of the guaranty should begin, and when it should end. The allegations of the complaint put its beginning at the “ completion of the bridge.” The bond makes the period of time thus stipulated six years, but without indicating the time of its commencement or its end. The bond does not show when the bridge was completed. It could not, then, be inferred from the bond itself when “the stipulated time” expired, so that, as a matter of law, it could be declared by the court. It must, then, be left to the jury, upon all the evidence delivered to them on the trial. This was the result of our investigation when this cause was here at the January term, 1871. The bond may be referred to the order of the court directing it to be taken. This order shows that “the commissioners” appointed to let out the building of the bridge were empowered “to contract for the erection of a new bridge over Lick creek, at the Beauchamps Camp Ground, requiring the undertaker to enter into bond with good security to keep the same in good passable order for six years from the day of its completion.” The day of the completion of the bridge was not a fact fixed by the bond. It was, therefore, proper to leave its ascertainment to the jury, as any other fact not admitted on the trial. The action of the court below on this point, in this case, on the trial below, was correct.

The other question above referred to involves the consideration of the elements which enter into an estimate of the damages in such a case as this. Damages, it is said, are intended as a pecuniary compensation to the party wronged for the hurt inflicted; to be great or small, in proportion to the injury itself. And where there is no malice connected with the wrong complained of, or such gross negligence, or oppression, or fraud as amounts to malice, the compensation or amount of damages should be confined to the actual injury and its immediate effects upon the person of the plaintiff, when the action is for harm to the person, which seems to be the case here. — Sedgw, Dam. pp. 28, 29, 35, 36, et seq.; 2 Black. Com. 438; Coke, Litt. 257a; Dexter v. Spear, 4 Mason, 115; Rockwood v. Allen, Ex’r, 7 Mass. 254; Bussy v. Donaldson, 4 Dall. Penn. R. 206; Donnell v. Jones, 13 Ala. 490, 508. How this compensation shall be estimated by the jury, must depend upon the facts of each particular case. In such a matter, the jury can not be allowed unlimited and uncontrolled discretion. — Sedgw. Dam. pp. 30, 409, App. No. 1; 2 Greenl. Ev. §§ 253, 254; Walker v. Smith, Wash. C. C. R. 152; Sherm. & Redf. on Negl. p. 674, §§ 600, 601; also, Bell v. Cunningham, 3 Pet. 69, 86. But the authorities which define the practice under the admitted rule for the measure of damages, in all cases that may arise, seem not wholly free from confusion and uncertainty. In such a case as this, there can be no vindictive damages; and as there is no continuing trespass, but one action can be brought. — Conard v. Pacific Ins. Co., 6 Pet. pp. 262, 282; Tracy v. Swartwout, 10 Pet. 80, 85; Fetter v. Beal, 1 Lord Raym. 339. Yet it is evident that the direct consequences of the injury may extend to the future as well as to the past. And it is for the disabling effects of the injury, whether past or prospective, that the plaintiff is entitled to compensation.— 3 Bouv. Bac. Abr. p. 57, and cases supra. Then, the jury may consider the expenses of the cure, and if the injury is irremediable, and will necessarily require future treatment and nursing, the probable costs of this, also, may be added; so, likewise, the loss of time up to the verdict, and the probable loss of time in the future, and the pain inflicted upon the body. — 2 Greenl. Ev. § 267; Fetter v. Beal, supra. These are things of value, capable of pecuniary admeasurement, and which the plaintiff loses by the injury, or they are burdens imposed upon him by the conduct of the plaintiff, against the effects of which he is entitled to indemnity, so far as a pecuniary compensation can afford it. But the wealth of the defendant, or poverty of the plaintiff, has nothing to do with their ascertainment. It was, therefore, improper to admit evidence of the wealth of the defendant in the court below to go to the • jury, orto refuse to instruct the jury, when properly requested, that the defendant’s wealth could not be taken into consideration in making up their verdict.—2 Greenl. Ev. § 268; Wilcox v. Plummer, 4 Pet. 172, 182. It may be also proper to remark, that in cases where there is a total loss of the services by the death of the person injured, the legislature has fixed a proper rule for the highest assessment of the damages; that is, the sum of one hundred dollars, annually, for thirty years, which is about the estimated period of one life, upon a general average. — Rev. Code, § 2298. Although a jury would not be bound by this rule, except in case of the death of the person injured, yet so far as loss of time is involved it might furnish a basis of a correct result; one, at least, fixed by positive law, in a similar case, where the loss of time is permanent,

It is urged by the learned counsel for the appellee, that if the judgment of the court below is reversed, then the cause should not be remanded, but dismissed. I do nof think so. The plaintiff has the right to amend his complaint on sustaining the demurrer. In this, he can put any thing into his amended complaint which shows that he has been wronged by the defendant, and that the wrong so alleged is the subject of an action at law. This court has no authority to presume what this will be. It can only act upon the ease brought here on appeal.

The judgment of the court below is reversed, and the cause is remanded for a new trial.