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drawer's signature as well as the amount expressed in the check.
As to him there is *^® no obligation upon the plaintiff bank to
know or to discover that the drawer's signature was forged or the
amount raised. The drawee bank is held to a knowledge of the
signature of the drawer, but the payee indorser is held to a
knowledge of all other facts.

The discounting bank and the drawee bank in such a case have
the right to rely upon the indorsement of the payee, and, as to
him, are not required to exercise any diligence to discover the
fact that the check had been raised. These facts are conclusively
presumed to be within the knowledge of the payee. Under such
circumstances, the money paid can be recovered back in assump- '
sit, unless possibly, from some subsequent arrangement or cause,
the right is lost. Certainly the fact that the payee, who reoeived
the money as payee and ostensible owner, has disposed of it ac-
cording to his own will cannot in any way affect this nVht. The
authorities cited by appellee, to the proposition that if a bank
pays a forged check to a holder without fault, who, in ignorance
of the fraud, pays value for it, the money cannot be recovered
back, are not applicable to the case at bar. Bradley was the
payee, and by his indorsement obtained the money. He parted
with nothing to get possession of the check. Its genuineness is
conclusive as to him, and as indorser he guaranteed it to be gen-
uine for the amount expressed in the check: Carpenter v. North-
borough Nat. Bank, 123 ^Mass. 66; National Park Bank v. Sea-
board Bank, 114 N. Y. 28; 11 Am. St. Eep. 612; White v. Con-



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20 BiRMiNonAM National Ba^k v. Bradlst. [Alabamai

tinental Nat. Bank, 64 N. T. 316; 21 Am. Eep. 612; Sasqne-
hanna etc. Bank v. Loomis, 85 N. Y. 207; 39 Am. Sep. 662.

The check was forwarded by the plaintiff to the National Park
Bank for collection. The amount of the check was credited to
the plaintiff on the day received, and the plaintiff notified that it
was paid. As soon as the forgery was discovered, which was
within three days after its reception, the National Park Bank
charged the amount back to the plaintiff and returned the check.
If the money, in fact, had been remitted to plaintiff, we do not
doubt, under the facts disclosed in the record, the National Park
Bank could have recovered the money in assumpsit. The check
was forwarded "for collection.'' Funds of the drawer on deposit
with the drawee were applied to its payment, by crediting the
amount to the forwarding bank, and, if the check had been al-
tered, the **® credit was without legal authority from the drawer,
and under a mistake of facts for which, as between the drawee
bank, if the money had been remitted, or the forwarding bank,
which had paid the money, and the payee — ^indorser — ^the latter
would be responsible, in an action for money had and received:
Young V. Lehman, 63 Ala. 519; National Park Bank v. Seaboard
Bank, 114 N. Y. 28; 11 Am. St. Eep. 612; United States Bank t.
National Park Bank, 129 N. Y. 647. The payee of a forged
check, who indorses it and receives the money, acquires no title as
against the party or the owner of the money. It would seem un-
necessary to cite additional authorities to this proposition: Na-
tional Park Bank v. Seaboard Bank, 114 N. Y. 28; 11 Am. St
Eep. 612; United States Bank v. National Park Bank, 129 N. Y.
647.

The respective rights of the drawer and drawee, and their
corresponding duties and liabilities to each other, and private
rules existing between them for their mutual protection, do not
arise in this case. Not having remitted the money, but simply
having credited the amount to the plaintiff, the drawee bank
had the right to charge it back. The undisputed proof establishes
the fact that the demand has not been paid to the plaintiff by the
defendant, Bradley.

The case cited by appellee (Clews v. Bank of New York, 114 N.
Y. 70), is not applicable. In the authorities cited. Clews, before
purchasing the certified check, inquired of the certifying bank if
the certificate of the check was good, and, being assured that "the
bill was correct in every particular," parted with valuable consid-
eration for it. The check had been raised. The suit was main-
tained, not upon the ground that the certifying bank had been



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Not. 1893.] Louisville etc. R. R. Co. 9. Markss. 21

negligent, but upon the contract of certification. If Bradley
had been so assured by the drawee bank that the check was correct
in eyery particular, and upon this assurance had parted with yalue
to obtain the check, the case would be more in point. The rela-
tive obligation of the parties in the case at bar are the reverse.
The drawee bank was assured by Bradley's indorsement, and by
the plaintiff bank, that the amount expressed in the check was the
real amount for which it was given.

We have held that the plaintiff owed the defendant no duty to
discover the fraud and forgery, and the evidence is without con-
tradiction that both the plaintiff ^* and the National Park
Bank acted with all due diligence after the discovery of the al-
leged fraud and forgery. Under the facts of the record before ns
there is but one open question, and that is, whether the check was
in fact altered after it was issued by the Gate City Bank and be-
fore it was indorsed by the defendant, Bradley. The statement
of the principles of law appl3dng to the case will enable the parties
to shape the issues properly on another trial.

Reversed and remanded.

CHECKS— LIABILITY OF INDORSERS.— A bank or drawee of a
check is not boand to knov^ the signature of an indorser, and the bolder,
whether be indorses the instrument or not, warrants the genuineness
of all prior indorsements: Extended note to People's Bank v. Franklin
Bank, 17 Am. St. Rep. 898.

BANKS— RIGHT TO RECOVER MONEY PAID ON FORGED OR
ALTERED GHECK. - A bank paying a check on a forged indorsement
is entitled to recover the money so paid from the person receiving it,
on making demand within a reasonable time after the discovery of the
forgery: First Nat. Bank v. Northwestern Nat. Bank, 152 111. 296; 43
Am. St. Rep. 247. See the thorough discussion of this subject in the
extended note to People's Bank v. Franklin Bank, 17 Am. St. Rep. 892,
888.



LOUISYILLB AND NaSHVILLE R. R Co. V. MaRKEB.

(lOS ALABAMA, 16a]

FLEADINQ— NEGLIGENCE.— AN AVERMENT that the engi-
Deer in charge of the defendant's train ran it without care, and negli-
gently, through a cut and around a curve and upon John S. M.,
and thereby killed biro, and that his death was the result of the
negligence of such engineer, sufficiently states the negligence of the
defendant.

PLEADING — CONTRIBUTORY NEGLIGENCE. — A plea thai
the plaintiff was himself guilty of negligence in and about the dis-
charge of his duties, which negligence contributed to bis injury, is
loo general, and a demurrer to it should be sustained.

PRACTICE.— IF ISSUE IS FORMED UPON A PLEA, the de-
fmdant, if it is sustained, is generally entitled to a verdict, though it is
an insufficient plea.



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22 LouisvTLLE ETC. R. R. Co. V. Markeb. [Alabama,

NEGLIGENCE — PLEADING.- A PLEA OF CONTRIBUTORY
NEGLIGENCE IS NO AN8WEB to a complaint charging willfai and
wanton negligence.

PLEADING WANTON NEGLIGENCE.— UNDER A COMPLAINT
AVERRING SIMPLE NEGLIGENCE, the plaintiff should not \m
permitted to prove willful injury or wanton negligence.

NEGLIGENCE OR WANTONNESS.— The failure of the engineer
of a railway train, after eeeing a person on the track or in a position
of danger, to do the act which if done would have avoided the in-
jury, is not necessarily equivalent to an intentional wantun wrong.
Such rule would require infallibility in selecting the best means to
avoid an injury, while all the law requires is the adoption in good
faith of the means believed by the person called upon to act to be
the best adapted to prevent injury.

RAILWAYS.-THE REQUIREMENT THAT A WHISTLE BE
BLOWN AT THE HIGHWAY CROSSING is intended to provide
lor the warning and protection at such crossing, and an omission to
comply with this requirement cannot constitute net^ligence enti-
tling an employee to recover for injuries received while operating a
hand-car at a point nearly a half mile distant from such crossing.

RAILWAYS.— THE FAILURE OF AN ENGINEER TO BLOW
A WHISTLE BEFORE entering a cut or curve, if required to do so by
the rules of the corporation, is simple negligence and no more,
when he has no knowledge of the presence of a person in or beyond
such curve or cut to whom the blowing might have operated as a
warning of danger.

NEGLIGENCE, CONTRIBUTORY. — IF THE RULES OF A
RAILWAY COMPANY REQUIRE ITS EMPLOYEES, in running
hand-cars over the road, to flag curves and other dangerous places,
a foreman who neglects this duty and is run over and injured in
consequence thereof is guilty of contributory negligence.

JURY TRIAL.— AN INSTRUCTION GIVEN AT THE REQUEST
OF A PARTY cannot be complained of by him.

JURY TRIAL.— AN ABSTRACT INSTRUCTION inapplicable to
any evidence in the case is likely to be misleading, and should not be
given.

DAMAGES IN AN ACTION FOR DEATH.— In an action brought
for the death of a person who is shown to have been capable of
earning a small amount of money, all of which he had been appro-
priating to the comfort and support of himself and his family, such
family have no pecuniary interest in his life, except by way of sup-
port and maintenance, and the jury should not be authorized in the
instruction of the court to give damages based upon the probability
that he might have accumulated an estate which would have gone to
his family at his death.

Action by Mrs. Markee, as adminisiTatriz of her deceased hus-
band, to recover compensation for injuries suffered by him, re-
sulting in his death, and which were claimed to be due to the neg-
ligence of the employees of the defendant corporation. The aver-
ment of negligence in the complaint and the plea of contributory
negligence, to which a demurrer was sustained, are shown in the
syllabi. There were, however, pleas of contributory negligence,
in which facts claimed to constitute such negligence were specifi-
cally averred, and the demurrers to these pleas were overruled.
The court orally charged the jury that it was for them to deter-



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Not. 1893.] Louisvills etc. R. R. Co. t. Markes. 28

mine whether the decedent had been guilty of negligence in yio-
lating the rules of the defendant, and whether or not, in yiew of
tH the circiunstances, he contributed to his own death by his own
negligence. At the request of the plaintiff the jury were
further instructed that, while the decedent assumed the risks
incident to his employment, yet the plaintiff could recover if he
had been injured by a superadded risk, consisting of the negli-
gence of the engineer, unless guilty of contributory negligence.
The defendant asked that the jury be instructed that the failure of
the engineer to use the utmost expedition, or to select the most
ayailable means of stopping the train on discovering the peril of
the decedent, did not constitute willful, wanton, or intentional
negligence, unless it manifested a willingness, on the part of the
engineer, to inflict injury; that it was the duty of the decedent
to have protected himself and his hand-car, and that the defend-
ant owed no duty to see him xmtil he was discovered on the track,
nor to blow the whistle at the public crossing. All these requests
were refused. The defendant excepted. The jury returned a
verdict in favor of the plaintiff for three thousand dollars, and the
defendant appealed.

J. M. Falkner, and Hewitt, Walker & Porter, for the appellant

Bulger & Altman, contra.

*•* COLEMAN, J. This is an action, under the Employers*
Liability Act, to recover damages sustained by the death of
plaintiff's intestate, averred to have been caused by the negligence
of the defendant railroad company. The case was tried upon two
counts. The first count charges that the engineer in charge of
the engine "ran said engine, without due care and negligently,
through said cut and around said curve and on the said John S.
Markee,** etc., and that his death "was the result of the negligence
of said engineer." The other count charges a defect in the ways,
works, and machinery. The real contest was upon the first count.

Under former decisions of this court, the complaint was suffi-
cient, and the court did not err in overruling a demurrer to the
first or third count of the complaint: South etc. B. R. Co. v.
Thompson, 62 Ala. 494; I^each v. Bush, 57 Ala, 145; Ensley
Ry. Co. V. Chewning, 93 Ala. 24; Mobile etc. R. R. Co. v. Qeorge,
94 Ala. 199; Savannah etc. R. R. Co. v. Meadors, 95 Ala. 137.

The defendant pleaded the general issue, and also several pleas
setting up contributory negligence as a defense. The first pies
of contributoiy negligence was too general, and the demurrer to



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24 LouiBViLLE ETC. R. B. Co. V. Mabksb. [Alabama,

it was properly sustained: Tennessee etc. B. B. Co. v. Hemdon,
100 Ala. 461. The trial proceeded upon issue joined upon the
plea of the general issue, and the pleas of contributory negligence.
After the close of the CTidence, the court, among other charges,
instructed the jury, as matter of law, the plaintiff was guilty of
contributory negligence. For the defense ^^ it is contended
that, under the instructions of the court, holding as matter of law
that the plea of contributory negligence was sustained, the de-
fendant was entitled to a yerdict, and this on the principle, often
decided, that when issue has been joined upon a plea, even though
it be an insufficient plea, the defendant has the right to support
it by CTidence, and, if sustained, he is entitled to a verdict: Mem-
phis etc. B. B. Co. Y. Graham, 94 Ala. 645; Farrow t. Andrews,
69 Ala. 97; Mudge y. Treat, 67 Ala. 1.

On the other hand, it is contended by the plaintifE that under
many decisions of this court, although a defendant may show
conlributory negligence, yet the plaintiff may prove, if he can,
that after the discovery of his danger, the defendant was culpably
negligent in not using proper preventive effort to avoid the in-
jury, and upon such proof the plaintiff may still recover, notwith-
standing he may have been guilty of contributory negligence.
The authorities relied upon to sustain this latter contention are
collected in the case of Louisville etc. B. B. Co. v. Webb, 97 Abu
308; Louisville etc. B. B. Co. v. Hurt, 101 Ala. 84; Tanner v.
Louisville etc B. B. Co., 60 Ala. 621.

It has also been held that where the plaintiff counts upon will-
ful or wanton negligence, and the proof shows only simple negli-
gence, there is that variance between the allegata and probata
which will defeat a recovery: Louisville etc. B. B. Co. v. Johns-
ton, 79 Ala. 436; Birmingham etc. B. B. Co. t. Jacobs, 92 Ala.
187; Kansas City etc. B. B. Co. v. Crocker, 96 Ala. 432; High*
land Avenue etc. B. B. Co. v. Winn, 93 Ala. 308.

It would also seem, on principle, if there is that variance be-
tween simple negligence and wanton or willful injury that proof
of the former will not sustain a complaint charging the latter,
that a replication to a plea of contributory negligence, averring
willful and intentional injury, would be a departure from a com-
plaint charging simple negligence: Eskridge v. Ditmars, 61 Ala.
246.

It has also been decided that a plea of contributory negligence
is no answer to a complaint counting upon willful or wanton
negligence: Alabama etc. B. B. Co. v. Frazier, 93 Ala. 46; 30 Am.
St Bep. 28; Louisville etc. B. B. Co. v. Watson, 90 Ala. 68;



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Not. 1893.] Louisyillr etc. R. R. Co. v. Mabksb. 25

Uontgomeiy etc. B. R. Co. y. Stewart, 91 Ala. 421; EaoBas City
etc E. R Co. V. Crocker, 95 Ala. 412.

iTo There is not necessarily that inconsistency in these seyeral
principles of law which will prevent their proper application in
a single suit, if the complaint and pleas are properly framed.
Their improper application to the pleadings have led to confu-
sion. The practice which has obtained in this state, and to some
extent justified by adjudications of this court, of proving willful
injury, or wanton negligence as its equivalent, under a complaint
ayerring only simple negligence, should no longer prevail. It.
is not correct in principle or practice, and leads to confusion or
injustice. This court does not generally review assignments of
error not properly raised and excepted to during the trial, and
▼hich are not necessary to a determination of the case. We
think it very clear that a plea of contributory negligence is no
answer to a charge of having intentionally or wantonly caused
the death of another. If an engineer saw, or knew, that a per-
son had placed himself upon a railroad track for the very purpose
of being run over and kiUed, he could not be justified in running
his engine npon such person, because of the willful or intentional
misconduct of such person. The proper plea to such a charge is
the general issue, and not of contributory negligence; for if the
plaintiff counts upon such a charge, and proves it, he is entitled
to recover, in cases where the principal is liable for such acts of
its agents, notwithstanding the deceased intentionally contrib-
uted to his own death. A plaintiff is presumed to know his cause
of action when he brings his suit, and has the right to state it in as
many counts as he may deem it necessary to meet the varying
phases of the evidence, and it is his duty to fully inform the de-
fendant by his declaration of all the grounds of complaint relied
upon for a recovery. Having done this, the defendant is in a
condition to prepare his pleas in defense. It is not just for the
parties to go to trial, and after having entered upon the trial,
upon i^aes shaped by the pleading, to permit either party, against
the objections of the other, imless specially authorized by statute,
to inject a new issue, and allow the plaintiff to recover upon a
cause of action not stated in his complaint, or the defendant to
avail himself of a defense of which his adversary is not apprised
by the plea. If, however, the parties go on without objection,
this court will not consider the objection, *''* if first raised here.
If, during the trial, it is developed that the pleadings are not suit-
ably framed to meet the evidence, under our liberal system of
pleadings, it is the duty of the court to permit, if desired, an



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26 Louisville etc. R. R. Co. v. Markeb. [Alabama,

amendment of the pleadings^ the court taking care to see that no
undue advantage is obtained thereby, nor injustice done, and that
the amendment does not go to the extent of changing '*the form
of the action, nor an entire change of parties, nor the substitu-
tion or introduction of an entirely new cause of action.'* These
are the only limitations on the right of amendment: Mahan y.
Smitherman, 71 Ala. 565; Johnson v. Martin, 54 Ala. 271; Code
1886, sec. 2833.

A declaration or complaint may in one count aver simple neg-
ligence, in another willful and intentional wrong, and proper is-
sues may be made up under the pleas to each count; or, if the
complaint charged either the one or the other, and the proof was
such as to require an amendment of the pleadings by adding a
new count, this should be allowed, and a plea to the complaint
as amended filed. Justice might require a continuance under
some circumstances, but the question of a continuance, to pre-
vent injustice or undue advantage, would depend greatly upon
the circumstances of each case.

We think what we have said will suffice on the questions con-
sidered.

One material question in the case is as to whether there was
any evidence tending to show negligence on the part of the en-
gineer after the discovery of the danger of plaintiff's intestate.
We do not think a failure to do an act, which if done might or
would have avoided the injury, necessarily constitutes it an inten-
tional, or such a willful or wanton, wrong as to be the equivalent
of intentional wrong. Such a rule would require infallibility
in the selection of the means used to prevent the injury. No em-
ployer owes such a duty to his employee. Due care and reason-
able diligence is all that the law requires: Highland Avenue etc.
R. R. Co. V. Sampson, 91 Ala. 563. If the person charged with
the duty consciously fails or refuses to exercise reasonable care to
prevent an injury after the discovery of peril, or under circum-
stances where he is chargeable with a knowledge of such peril,
and injury results, he will be guilty of willful injury, or such wan-
ton negligence as to be its equivalent. If an employee *''* or
agent charged with the duty, after the discovery of the peril of
a coemployee, in good faith exercises due diligence and care to
prevent an injury, and injury results notwithstanding, it cannot
be said he is guilty of simple negligence or of intentional and will-
ful wrong.

The evidence shows that the deceased was a section foreman,
riding on the track on a hand-car in the discharge of his dutiei



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Not. 1893.] Louisvills etc. R. R. Co. v. Markeb. 27

and at the time going south. The train which ran oyer him was
ako going south, heavily loaded with pig iron. The hand-car
was about emerging from a cut, in which there was a curve which
•0 obstructed the view that persons in charge of the train could
not see the hand-car or deceased until they were within one hun-
dred and fifty yards of him. The train was running twenty-five
miles an hour, schedule time, and down grade. The evidence
shows, without conflict, that as soon as the presence of the deceased
was discovered, the alarm was given, the brakes were put on, and
then the engine reversed. The engineer and the witness Rosser,
who was an expert, testified that this was the most effective
method of stopping the train. The conductor, who had never
acted in the capacity of an engineer, but, from his long employ-
ment as conductor and familiarity with the manner by which en-
gines are controlled, had acquired sufficient knowledge to render
him competent to give expert testimony, testified that, in his
opinion, the most effective way to stop a train is by first revers-
ing the engine, and then to apply the brakes. Whether the one
or the other be correct, we think it very clear that if the engi-
neer, after discovering the peril of deceased, adopted the means
he believed best adapted to stop the train, and in good faith did
all he coidd to prevent the collision, it cannot be said he was
guilty of intentional injury, or such wanton or reckless negligence
as to be its equivalent, even though the jury might believe the
conductor was right in his conclusion.

There was evidence tending to show that, on account of the
speed of the train, its load, and the down grade, no preventive
effort could have prevented the collision with the hand-car after
it was seen. If the jury should believe this phase of the evidence,
the engineer was not chargeable with simple negligence, or with
willful or wanton injury, for a failure of duty arising after the
discovery of the peril of plaintiff's intestate.

*'" It is contended that the engineer was guilty in not blow-
ing his whistle before reaching the curve. It would have been
better pleading to have charged this negligence in the complaint,
but we will consider the question upon its merits, as the cotirt was
requested to give instructions on this point. There was some evi-
dence tending to show that a sign post with the letter ''W" stood
on the right of the road, just before reaching the curve, which re-
quired engineers to blow the whistle before entering the cut and
curve. This fact was controverted. The proof showed also that
there was a public crossing of the road about one-half mile north
of where the injury occurred. The evidence was in conflict as to



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28 LouisviLLB ETC. R. R. Co. V. Markss. [Alabama,

whether the whistle blowed at the public crossing. The defend-
ant requested the court to instruct the jury that it owed do< eased
no duty to blow the whistle at the public crossing, which was re-
fused. It has been decided that section 1144 "was intended to
protect and warn persons who at a public crossin<r« pass across
and directly on the track,** *'and for the benefit of the traveling



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 2 of 121)