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fact is as much within the knowledge of the jury as of the judge.

8. Where the evidence is conflicting, a charge that "the undisputed evidence does not show that the plaintiff is entitled to recover," while true, is misleading, and therefore properly refused.

9. It is the duty of the conductor of an electric car, when his car has stopped to allow passengers to alight, to see that no passenger is in a position which would render it dangerous to start the car, before giving the signal to start, although the car is running on schedule time, and stops only at regular stations.

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Jasper N. Wildman against the Birmingham Railway & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed.

This suit was brought to recover damages for injuries alleged to have been received by the plaintiff while a passenger on one of the defendant's electric cars, and while alighting therefrom at a station on defendant's line, which injuries were alleged to have been caused through the negligence of persons in charge of the cars in suddenly starting while the plaintiff was in the act of alighting from said car. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the jury the following written charges: "(1) It is a duty of the conductor of a street car operated by electricity, when his car has been stopped for passengers to alight, to see and know that no passenger is in the act of alighting, or is otherwise in a position which would be rendered perilous by the motion of the car, when he again puts the car in motion. (2) Plaintiff owed defendant no duty to inform defendant that he had been hurt, before the filing of the suit. (3) Plaintiff's counsel owed defendant no duty to inform defendant that plaintiff had been hurt, before the filing of the suit. (4) Neither plaintiff nor his counsel owed defendant any duty to give defendant any information before the filing of this suit, to enable defendant to get witnesses or gather information." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by it: "(1) I charge you, gentlemen of the jury, that the undisputed evidence does not show that the plaintiff is entitled to recover in this cause. (2) I charge you, gentlemen of the jury, that the defendant's counsel has made no argument to you that it was the duty of the plaintiff to give the defendant information to enable the defendant to make its defense in this cause. (3) In arriving at your verdict in this cause, I charge you, gentlemen of the jury, that, in connection with all the other evidence in this case, you have the right to consider that the plaintiff did not inform the defendant that he had

been hurt, before the filing of the complaint, if from the evidence you believe that the plaintiff did not give the defendant such information before the commencement of this suit. (4) In arriving at your verdict in this case, I charge you that, in connection with all the other evidence in this case, you have the right to consider that the plaintiff's counsel did not inform the defendant that the plaintiff had been hurt, before the filing of the plaintiff's complaint, if from the evidence you believe that the plaintiff's counsel did not give the defendant such information before the commencement of this suit." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker, Porter & Walker, for appellant. Bowman & Harsh, for appellee.

BRICKELL, C. J. Appellee sued to recover damages for injuries alleged to have been received while a passenger on an electric car operated by appellant, through the negligence of the persons in charge of the car in suddenly starting it while he was in the act of alighting from the front platform. There were no witnesses to the accident, which occurred about 8 o'clock on the evening of September 2, 1896, at East Woodlawn, and plaintiff was the only witness who testified in his behalf. The defendant introduced all the conductors and motormen who operated cars on that route on the evening of September 2d, each of whom testified that, if any accident occurred on his car, he did not see it, and had no notice or knowledge concerning it. For the purpose of attacking the bona fides of plaintiff's claim, and showing that, from motives of self-interest, he had purposely withheld from defendant all knowledge of and information concerning the accident, defendant's attorney propounded the following questions to plaintiff on cross-examination: "Did you ask them (your lawyers) to come and see the railroad company about it?" "Didn't you tell them (your lawyers) to go and present the matter to the railroad company, and ask them to pay you damages?" "Did you tell them not to sue at once, but to wait a while?" To each of these questions an objection was sustained. The inquiries were not only immaterial and irrelevant, but they also directly called for a disclosure by a client of confidential communications to his attorney. While a party who offers himself as a witness cannot refuse to answer pertinent questions on the ground that he had communicated to his attorney the matters inquired about, yet he cannot be compelled to state whether or not he had communicated certain facts to his attorney, or given him certain instructions. As stated by Mr. Wharton: "It is obvious that the guard against the disclosure of such

communications by counsel would be a mockery if the client could be compelled to disclose that as to which counsel's lips are sealed. It would be absurd to protect by solemn sanction professional communications when the lawyer is examined, and to leave them unprotected at the examination of the client." 1 Whart. Ev. § 583; Montgomery v. Pickering, 116 Mass. 229; Hemenway v. Smith, 28 Vt. 701; Bigler v. Reyher, 43 Ind. 112. The plaintiff owed no duty to defendant to notify it, or give it any information, concerning the accident, previous to the commencement of the suit; and the evidence sought to be elicited was not admissible for the sole purpose of enabling the jury to draw

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court of these respective rights of jury and counsel is unwarranted, and constitutes reversible error. Cross v. State, 68 Ala. 482; Hobbs v. State, 74 Ala. 41. At the request of the plaintiff the court properly instructed the jury that neither the plaintiff nor his counsel owed defendant any duty to inform it that plaintiff had been injured, but, when requested by defendant, refused to charge that, in connection with all the other evidence in the case, the jury had a right to consider that plaintiff did not inform defendant that he had been injured. As stated above, the fact that no notice or information concerning the accident had been given defendant being in evidence, the jury had a right to consider this fact. The latter charge should therefore have been given, as, in a sense, explanatory of the former; and especially for the reason that the court had unwarrantably deprived defendant's counsel of the right to discuss in argument the weight, effect, and tendency of this evidence. The record does not set out the whole of counsel's argument to the jury, and it must be held that the court properly refused to charge, as requested, that defendant's counsel "had made no argument to you that it was the duty of the plaintiff to give defendant information to enable the defendant to make its defense in this cause." But, even if the record had shown affirmatively that no such argument had been made by counsel, we should hold that it was not error for the court to refuse such a charge. If the fact that such argument was or was not made was at all material, the jury had knowledge of the fact as well as the presid

Yet testimony tending to show the fact that no notice of or information concerning plaintiff's accident was given to defendant or any of its representatives previous to the institution of this suit, and that the firs intimation had by defendant that plaintiff claimed to have been injured was when the summons and complaint were served, was offered by defendant, and received without objection. Parties have an undoubted right to try their case on illegal evidence, if they so desire; and, if illegal evidence is admitted without objection, it is the right and duty of the jury to give it such consideration as it would be entitled to if legal evidence, and it is also the right and duty of counsel, in argument, to aid the jury in determining the weight and effect it should have. During his argument of the case, defendant's counseling judge. stated to the jury that, "in determining the bona fides of plaintiff's claim that he was hurt in the manner testified to by him, the jury could and should look to and consider that he never at any time before he brought this suit gave the defendant any notice or information of his alleged claim that he had been hurt." To this part of the argument an objection by plaintiff was sustained, and the trial court stated to the jury that the argument was improper, and should not be considered by the jury. In this the court erred, since its ruling was an invasion of the province of the jury, and, in effect, an ir struction to the jury that they could give no consideration to a part of the evidence in the case, which had been admitted generally and without limitation of any kind. It is distinctively the province of the jury to consider each part of the evidence, to weigh it in connection with all the other evidence, and to draw from it such inferences, and give it such weight in determining their verdict, as they may think it is entitled to; and it is clearly the right and duty of counsel to comment on such testimony, to state the inferences he may think arise from it, and to aid the jury in this manner in arriving at a correct conclusion. Any invasion by the

The court refused to charge at the request of the defendant that "the undisputed evidence does not show that the plaintiff is entitled to recover in this cause." The proposition of the charge is strictly true. That part of the evidence which was undisputed clearly did not show that plaintiff was entitled to recover. But the charge is so worded that it was capable of being construed by the average mind to mean that under the whole evidence the plaintiff was not entitled to recover. It is manifestly misleading, and was therefore properly refused.

The principle applicable in the case of ordinary railroads operated by steam power, and stopping at regular stations, that the conductor of a train is required to stop only a sufficient length of time to allow passengers an opportunity to alight by the exercise of reasonable care and diligence, and, having so waited, is not guilty of negligence in putting the train in motion again while a passenger is in the act of alighting, or otherwise in a dangerous position, unless he knew the fact at the time, or ought to have known it, has no application in this case. The evidence tends to show that there was only one car; that it was in charge of a conductor and a motorman; that plaintiff had notified

the conductor that he desired to get off at East Woodlawn; that the car was stopped at that station for the purpose of allowing plaintiff, and such others as desired, to alight; and that plaintiff got off from the front platform. Under these circumstances the same principle applies as in the case of street cars operating only on the streets of a city or town,-that when those in charge of the car stop it, in response to a signal or notification from a passenger, to enable him to alight, it is their duty to see and know, before starting again, that no one is in the act of alighting, or in any other perilous position. Railway Co. v. Smith, 90 Ala. 60, 8 South. 86. The exits from the car were under the immediate observation of both the conductor and motorman, and it was entirely practicable for both of them to watch the exits, and see that no one was in a dangerous position when the car was put in motion, and therefore it was their duty so to do. The mere fact that the car ran on schedule time, and, when beyond the city limits, stopped only at regular stations, does not change the principle applicable to the facts in this case. The court did not err in giving the charge whch asserted this proposition. Reversed and remanded.

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1. The fact that certain members of a grand jury had served as jurors within 12 months preceding is no ground for quashing the venire.

2. A conviction of a capital offense will be reversed where the record on appeal does not show affirmatively that the provision of the law requiring the court to set a day for defendant's trial was complied with.

Appeal from circuit court, Wilcox county; John Moore, Judge.

Peter Bowen was convicted of murder, and he appeals. Reversed.

The defendant made a motion to quash the indictment upon the following grounds: (1) Because the grand jurors by whom said indictment was found were not drawn in the presence of the officers designated by law. (2) Because said jury box contained no legal names at the time the grand jury which returned said indictment should have been drawn. (3) Because the jury box of said county, in November, 1895, contained no legal names; that the names therein were illegally placed therein. (4) Because one J. W. Middlebrooks acted as a grand juror at the time the said indictment was found, and participated in the proceedings of said grand jury in finding the indictment, and that said J. W. Middlebrooks was not drawn as a grand juror by the officers whose duty is was to select grand jurors for said term of the court, nor was he placed on said grand jury to supply a deficiency in the number of said grand

jury. The soliciter moved the court to strike the defendant's motion to quash the indictment from the file. This motion was granted, and to this ruling of the court in striking said motion from the file the defendant excepted. Thereupon the defendant filed a plea in abatement, assigning therefor the following grounds: "(1) Because the grand jurors who returned said indictment in said case were not drawn in the presence of the officers designated by law. (2) Because the grand jurors who found said indictment in said case were not drawn from the jury box of said county, as required by law; and, further, that they were not drawn at all. (3) Because the grand jurors who found said indictment in said case were not drawn as required by law. (4) Because the grand jurors who found said indictment in said case were not first drawn by the jury commissioners of said county, from the jury box, as required by law. (5) Because there were no legal names in said jury box at the time the law required this grand jury to be drawn therefrom." The state, by its solicitor, joined issue on the first ground, as set forth in the plea of abatement, and demurred to the other grounds thereof. This demurrer was sustained. Upon trying the issue as joined upon the first ground of the plea in abatement, the court, after hearing the evidence, gave the general affirmative charge in favor of the state, and to this ruling the defendant duly excepted. Thereupon the defendant moved to quash the venire, upon the ground that there were persons on the venire who had served as jurors within 12 months preceding. This motion to quash the venire was overruled, and to this ruling the defendant duly excepted.

Wm. C. Fitts, Atty. Gen., for the State.

The un

COLEMAN, J. So far as questions are presented by appellant's motion to quash the indictment, and by his plea in abatement, with the exception of the first ground, they are substantially the same as those presented in the case of Kitt v. State (Ala.) 23 South. 485; and, according to the principles declared in that case, we hold that the ruling of the court was free from error. Issue was joined upon the first ground, which averred that "the jurors were not drawn in the presence of the officers designated by law." contradicted evidence was to the contrary of the fact averred in the plea, and the court properly charged the jury affirmatively for the state as to this ground. The question raised by the motion to quash the venire because there were persons on the venire who had served as jurors within 12 months preceding has been disposed of adversely to the defendant in the following cases: Arp v. State, 97 Ala. 5, 12 South. 301, and cases cited; Jones v. State, 104 Ala. 32, 16 South. 135; Childs v. State, 97 Ala. 52, 12 South. 441; Cross v. State, 63 Ala. 40. It has long been settled that the provision of the law

which requires the court to set a day for the trial of a defendant who may be punished capitally is both mandatory and judicial, and that the record on appeal must show affirmatively that the provision has been complied with. Spicer's Case, 69 Ala. 159; Washington's Case, 81 Ala. 36, 1 South. 18; Burton's Case, 115 Ala. 1, 22 South. 585; Sylvester's Case, 71 Ala. 17. The record is entirely silent as to these preliminary orders, indispensable to a legal trial, and necessitates a reversal of the case. Reversed and remanded.

(119 Ala. 353)

COTTINGHAM et al. v. HILL et al. (Supreme Court of Alabama. Oct. 29, 1898.) DEEDS-DESCRIPTION-PAROL EVIDENCE.

A deed describing the land as "one acre of land situated on the old C. and C. road, on which the school house is to be built, and more particularly described as part of the N. W. 4 of N. W. 4 of section 9, township 22, range 6 west, in Bibb county, Ala.," is sufficient to admit parol evidence to identify the land.

Appeal from circuit court, Bibb county; John Moore, Judge.

Suit in ejectment by J. M. Cottingham and others against Henry Hill and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

J. M. McMaster, for appellants. Hague, Lavender & Fuller, for appellees.

COLEMAN, J. The appellees sued in ejectment to recover an acre of land. Plaintiffs and defendants claim from a common source, the plaintiffs' deed having been executed first. There is no controversy as to the facts. The contention is whether plaintiffs' deed is void for want of a sufficient description of the land, and whether parol evidence was admissible to identify the land. The deed describes the land as follows: "One acre of land situated on the old Columbiana and Centerville road, on which the school house is to be built, and more particularly described as part of N. W. 4 of N. W. 4 of section 9, township 22, range 6 west, in Bibb county, Ala." The parol proof offered in connection with this deed was that prior to its execution the grantors and grantees measured an acre of land, in shape square, with the road as a base, and cleared the same for the purpose of erecting a school house thereon; that the deed was executed, describing it as above shown; that shortly after its execution the school house was erected on the acre, and has remained there ever since; and that the grantor owned no other acre in said 40 acres upon which a school house was to be built. question presented is whether it is competent to show these facts by parol to identify the land in aid of the description in the deed. If the deed had described the land as the "schoolhouse lot," under several decisions of this court it would be upheld, if by parol proof the acre could be identified as the school-house

The

lot; and, upon the same principle, we are of opinion that the words, "upon which the school house is to be built," would let in parol proof to identify it. This court has gone as far as any other in admitting parol evidence to sustain the validity of deeds assailed upon the ground of indefiniteness in the description of the land, but the rule which we have adopted promotes justice, and does not open the door to fraud and perjury. In all cases the writing has been sufficient to show a bona fide sale and conveyance was intended by the parties, and, where this appears, no injustice results, if by parol evidence the precise property intended to be conveyed can be clearly identified. Chambers v. Ringstaff, 69 Ala. 140; Homan v. Stewart, 103 Ala. 644, 16 South. 35; Webb v. Land Co., 105 Ala. 471, 18 South. 178. No objection was raised to the complaint on account of the indefinite description of the land. In fact, the record shows that the parties agreed that, if the deed by the plaintiffs should be upheld as valid, judgment should be rendered for the plaintiffs. Under this agreement of counsel, the judgment of the circuit court must be affirmed.

It would have been better, had the complaint described the acre of land more definitely, averring the facts established by extrinsic proof. The judgment of the court, following

the complaint, would then have been certain and definite as to the acre of land recovered. Clement v. Draper, 108 Ala. 211, 19 South. 25; Clements v. Pearce, 63 Ala. 284. We presume, however, from the agreement of the parties, that they desired only an adjudication of the question of the validity of the deed, and the admission of parol evidence to Affirmed. identify the land.

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1. Parties to an interstate shipment are presumed to contract with reference to the acts of congress on that subject, and such contracts cannot be construed with reference to any other law.

2. In construing an act of congress with respect to its effect on a contract made in another state, comity does not require the court to follow the interpretation placed on the act by the supreme court of that state.

3. Under Interstate Commerce Act, § 6, requiring interstate carriers to post their tariffs, and prohibiting them from charging rates other than those published, a contract for the transportation of an interstate shipment at less than the published rate approved by the interstate commerce commission is invalid; and the carrier may collect the rate as published, regardless of that fixed by the bill of lading.

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Nellie P. Harrison against the Southern Railway Company. There was a judgment for plaintiff, and defendant appeals Reversed.

This action was brought to recover damages alleged to have been caused by reason of the refusal of the defendant to deliver to the consignee, plaintiff's agent, at Birmingham, two carriages delivered to the defendant as a common carrier, at Atlanta, Ga., to be delivered at Birmingham, Ala., for a certain agreed freight charge of $24; the defendant refusing to deliver the same at the place of delivery, unless the plaintiff should pay $32,-eight dollars in excess of the agreed freight charge. The defendant pleaded the general issue, and, among others, the following special pleas: "(4) The defendant, for further answer to the complaint, says that the said carriages were received from the plaintiff, Nellie P. Harrison, to be carried by the defendant, as a common carrier, from Atlanta, Georgia, to Birmingham, Alabama, over the defendant's railroad,-the same to be delivered to the plaintiff, or to her husband and agent, J. M. Harrison; that at the time the said goods were received a contract was made and entered into by and between the defendant and the plaintiff, for the transportation of said carriages, in the state of Georgia, in the city of Atlanta, in said state, where said goods were received, and the point from which they were to be shipped and transported; that the defendant then and there, at the time of said contract, had duly established and published its rates, fares, and charges and classifications of freight in force on defendant's road, and other matters, according to the requirements of the act of the congress of the United States entitled 'An act to amend an act entitled an act to regulate commerce; approved February 4th, 1887,' and which is found on pages 855 to 863 of the United States Statutes of 1888-89, commonly known as the 'Interstate Commerce Law'; that according to such published rates, charges, and classifications, the defendant had no right or authority to charge, demand, collect, or receive from the plaintiff a greater or less compensation for the transportation of said property, or for any service in connection therewith, than such as were specified in such published schedule of rates, fares, and charges then in force, to wit, the classification of said freight should have been 'double first-class,' instead of 'one and one-half times first-class,' and the freight rate on said carriages $1.28 on the one hundred pounds, instead of 96 cents on the one hundred pounds, as was in fact charged the plaintiff, but that nevertheless the defendant's agent at Atlanta, in violation of said law, and contrary to said published rates, charges, and classification, through inadvertence or mistake, wrongfully agreed to charge the plaintiff the lesser rate for the transportation of said goods, viz. 96 cents on the one hundred pounds, and wrongfully and by mistake classified said freight as 'one and one-half times first-class,' instead of 'double first-class.' And defendant says that the said contract of carriage was a Georgia contract, and to be

construed by the laws of the state of Georgia, and that under and by the laws of the said state of Georgia a common carrier who has complied with the terms of the interstate commerce act above quoted, in respect to publishing and establishing its schedules of rates, classifications, and charges, is not precluded from collecting from a shipper the full rates because by mistake a less rate was named to him by the carrier at the point of shipment, and also inserted in the bill of lading signed both by the carrier and the shipper, and that on discovery of the mistake by such common carrier after the shipment, but in time to correct it at the point of destination, such mistake may then be corrected by the exaction of the full schedule rate, and payment of the same by the shipper, as a condition to surrendering the goods to him; the transportation being fully completed. And defendant says that after said carriages arrived at Birmingham it was discovered that there had been made a mistake in the classification and rate as above stated, and that plaintiff was so informed, and the defendant offered to deliver the said carriages to the plaintiff, or to her agent, upon her paying therefor the lawful freight which should have been charged and contracted for upon a proper classification thereof, but that the consignee refused to make such payment, and left said carriages in the possession of the defendant for a long time; and defendant avers that while the carriages were in its possession it preserved the same with due care, and that the same did not materially deteriorate in value while in the possession of defendant, and that the action of the defendant in the premises was legal and right. (5) The defendant, for further answer to the complaint, says that the plaintiff should not have and recover of the defendant in this cause, because the defendant says that prior to the commencement of the action the defendant delivered to the plaintiff the said two carriages described in the complaint; the plaintiff paying therefor to the defendant, voluntarily, the rate and amount of freight charges which had been agreed on, to wit, 96 cents per hundred pounds, which amount the defendant received from the plaintiff, and did then and there deliver the said carriages to the plaintiff, who has ever since then been in the absolute possession, control, and enjoyment of the same. And defendant says it withheld said carriages from plaintiff from February 23, 1896, until, to wit, August 11, 1896, as stated in the complaint, in good faith, because it was advised and believed that it had the legal right to charge for the carriage of the same $1.28 per hundred pounds, instead of 96 cents per hundred pounds for the transportation of the same, and only in order to secure the payment by the plaintiff of said larger amount, but that the defendant finally agreed and consented to deliver the carriages to the plaintiff on his paying the said charge of 96 cents per

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