wheets of loose cars, and they took the risk or obedience to this order. In such shape such cars were absolutely safe, and a safety switch would be useless if orders to keep it properly set to be ditched were not obeyed. Reversed and remanded. BERNHEIM et al. v. STATE, to Use of WINSTON. (Supreme Court of Mississippi. April 23, 1900.) APPEAL-RECORD-TAXATION OF COSTS. 1. An assignment of error that the court erred in refusing to quash the execution cannot be considered; the record showing no motion to quash. 2. The discretion given the trial court by Code, § 889, in taxation of costs, will not be interfered with. Appeal from circuit court, Monroe county; Eugene O. Sykes, Judge. Action by the state, for the use of M. H. Winston, against Bernhein Bros. Judgment for the state, and defendants appeal. Affirmed. This is an appeal from a judgment overruling a motion to retax certain costs and fees incurred in the case in the circuit court of Monroe county. The case originated in a justice of the peace court, and was begun by appellants, Bernhein Bros., having execution to issue against a certain lot of merchandise in Aberdeen against one J. H. Winter, and was appealed to the circuit court, where judgment was rendered against defendant. An appeal was prosecuted to the supreme court, and there affirmed. On its being remanded, defendants filed their motion to have certain costs retaxed. At the hearing of the motion by the circuit court the same was overruled except as to one item, and defendants appeal, assigning the following errors: “(1) The court erred in refusing to retax the costs as to witnesses Monroe Rees, George Gilmore, and B. H. Winter, who were never sworn or tendered as witnesses, and who should not be allowed to claim or prove any witness fees against plaintiff. (2) The court erred in refusing to retax the costs as to Jim Brown Wilson and Jack Gilmore by allowing them to prove only two days' attendance against plaintiff. The court erred in allowing any of these witnesses to prove any of their attendance against plaintiff, for they were unnecessary witnesses. (4) The court erred in refusing to quash the executions." (3) W. H. Clifton, for appellants. Geo. C. Paine, for appellee. CALHOON, J. The fourth assignment of error cannot be considered because the record discloses no motion to quash the execution. As to the other assignments, we decline to interfere with the discretion given the trial court by Code, § 889. Affirmed. (125 Ala. 483) HIGHLAND AVE. & B. R. CO. v. ROBINSON. (Supreme Court of Alabama. April 17, 1900.) RAILROADS-TRESPASSER-INJURY TO TRESPASSER-DAMAGES-CONDUCTOR - SCOPE OF EMPLOYMENT-SUFFICIENCY OF COMPLAINT -JURY. 1. Where the complaint in an action against a railroad company for damages for injuries to a trespasser by being shoved from a moving train alleges that the plaintiff was wantonly and recklessly or intentionally injured by defendant through its servant or agent, it states a cause of action against defendant. 2. The word "recklessly," when used conjunctively with "wantonly," means something more than "negligently," and assignments of demurrer on the idea that the word "recklessly," used conjunctively with "wantonly," in a complaint for personal injuries, means "negligently," are without merit. 3. A person is liable for an act done without an intent or desire to inflict injury, but with such heedless indifference to the consequences as amounts to wantonness and recklessness. 4. Punitive damages may be recovered from an employer for injuries inflicted wantonly and recklessly or intentionally by his employé acting within the general scope of his employment. 5. In an action for damages for injuries to a trespasser by being shoved from a moving railroad train, the fact that the person who shoved him was conductor of the train, taken in connection with common knowledge of the duties of a conductor, is sufficient to authorize submission to the jury of the question whether the conductor was acting within the scope of his employment. Appeal from city court of Birmingham; H. A. Sharpe, Judge. Action by William Robinson, by next friend, against the Highland Avenue & Belt Railroad Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed. The complaint contained but one count, and the averments of negligence in said count are set forth in the opinion. To this count of the complaint the defendant demurred upon the following grounds: "(1) That said count is indefinite, uncertain, and vague, in that it is alleged therein in the alternative that the servants of defendant kicked, knocked, shoved, or caused the plaintiff to fall from said car. (2) That if it be true, as alleged in said complaint, that defendant's servants recklessly caused plaintiff to fall from said car, it would, at most, be simple negligence; and it is not averred in said complaint that the plaintiff was rightfully on the said car or that the defendant owed him any duty whatever. (3) For aught that appears in said complaint, the plaintiff was wrongfully upon the cars on defendant's road; and although the defendant, by its servants or agents, caused the plaintiff to fall from said car, the defendant would not have violated any contractual or other duty to him. (4) That the said complaint is indefinite, uncertain, and insufficient in that it is alleged therein that the plaintiff was recklessly or intentionally kicked, knocked, shoved, or caused to fall from said car, and the defendant is not informed how the alleged kicking, knocking, or shoving was done, nor is defendant informed how plaintiff was caused to fall from said car. (5) That the complaint does not allege any facts which show that defendant is liable for the wanton or intentional act of its servant or agent as therein alleged." This demurrer was overruled, and the defendant duly excepted. The cause was tried upon issue joined upon the plea of the general issue. The evidence for the plaintiff tended to show that he climbed up on the side of one of the freight cars operated by the defendant, and that, just after getting on the ladder, the car moved off; that he was not in the employ of the defendant; that the conductor of the defendant, who was on top of the freight car that was being switched, commanded him to get off of the car; that while he was climbing down the ladder the speed of the train increased, and before he could get off the conductor put his foot on top of his shoulder and shoved him off, and in his fall his foot was caught under the wheels of the car, and was cut off. The evidence for the defendant tended to show that the plaintiff was a trespasser upon the car, and that in getting off of the ladder, in obedience to the command of the conductor, he jumped off on the side of the track where it was rough, which caused him to fall, and thereby sustain the injuries complained of; and that the conductor, who was on said car, did not kick him or shove him off of the car. The court, at the request of the plaintiff, gave to the jury the following written charges: (1) "In order to a recovery by plaintiff it is not necessary that the jury believe that in kicking, knocking, or shoving the plaintiff from the car (if the jury believe from the evidence he was so kicked, knocked, or shoved) the conductor actually desired to injure plaintiff." (2) "It is not necessary for plaintiff to prove, in order to recover, that defendant or defendant's agent had any actual desire to injure him." (3) "If the jury believe from the evidence that the defendant wantonly and recklessly or intentionally caused plaintiff's injuries as stated in the complaint, then the jury must find for plaintiff." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give the following charges requested by it: (1) “If the jury believe all the evidence, they must find for the defendant." (2) "I charge you that the defendant is not responsible to the plaintiff for the willful, wanton, or intentional conduct of the conductor in injuring the plaintiff, if you believe there was such conduct and injury." (3) "I charge you that you cannot allow the plaintiff any punitive or vindictive damages under the evidence in this case." (8) "I charge you that there is no evidence in this case to show that the conductor was acting within the scope of his agency as such conductor in kicking, knocking, or shoving the plaintiff from the car, if you believe that he did so kick, knock, or shove the plaintiff from the car." (9) "There is no evidence in this case to show that the conductor was authorized by the defendant company to kick, knock, or shove the plaintiff from the car; and, even though the jury may believe from the evidence that the conductor did kick, knock, or shove the plaintiff from the car, there is no evidence that the defendant ever in any way ratified, justified, or approved this conduct of the conductor." (10) "Unless the jury believe from the evidence that the defendant company authorized or directed the conductor to kick, knock, or shove the plaintiff from the car, or subsequently ratified, justified, or approved the willful and wanton act of the conductor in kicking, knocking, or shoving the plaintiff from the car, then the jury must find for the defendant." (11) "If the jury should find that the plaintiff was entitled to recover, in estimating his damages they will allow only such sum as will compensate him, and cannot add anything by way of punishment to the defendant." There were verdict and judgment for the plaintiff assessing his damages at $2,500. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Alex. T. Loudon and John Loudon, for appellant. Bowman & Harsh, for appellee. MCCLELLAN, C. J. Robison, by next friend, prosecutes this action against the appellant railroad company. The claim is of $15,000 damages for that on a day named the plaintiff got upon a car belonging to the defendant, and "was wantonly and recklessly or intentionally injured by being kicked, knocked, or shoved from said car by the defendant, through its servant or agent, while the said car was in motion, and in consequence thereof plaintiff was run over, and was so badly cut, bruised, and mangled that he lost one of his legs," etc. The gist of this complaint is that defendant's servant either wantonly and recklessly or intentionally inflicted the injuries complained of upon the plaintiff. What follows as to plaintiff having been kicked, knocked, or shoved off a moving car is but the statement of the means by which the injury was inflicted; and it is wholly immaterial, so long as the injury was wantonly and recklessly or intentionally in flicted, whether it was effected by kicking, knocking, or shoving. The plaintiff, as the complaint is to be construed, was, of course, a trespasser, and the defendant had a right to put him off its car; and while, in the exercise of this right, and to its assertion and effectuation, its servant may have had the right to shove him off, it by no means follows that he had the right to wantonly and recklessly or intentionally injure him by shoving him, or by using any other means to get him off; nor does it at all follow that the company would not be liable for such injury. The averment, in other words, involves this: That either intentionally or (which is the same thing in legal effect) in wanton and reckless disregard of probable consequences the defendant shoved the plaintiff off the car under such circumstances as that the injury which did ensue would probably ensue, and that the act was done by the defendant's agent with a consciousness of the probability of such result; and this is an apt definition of wantonness and willfulness under our decisions. And, taking the complaint to mean this, there is no room for the contention of appellant that it fails to properly state a cause of action, because, under other circumstances than such as probably involve injury to the plaintiff, the defendant's servants would have had the right to shove him off the car. The word "recklessly," when used conjunctively with "wantonly," always means something more than "negligently." The two words thus conjoined can never import less than such conscious disregard of and indifference to the probable consequences of the act to which they refer as is the legal equivalent of willful misconduct and intentional wrong; and the assignments of demurrer which are rested on the idea that the use here of the word "recklessly" imports negligence only are without merit. But while wantonness and recklessness conjunctively legally import the same as intentional wrong in respect of the guilty party's liability for resulting injury, an act may be done wantonly and recklessly, and an injury may be wantonly and recklessly inflicted, without an intent or wish on his part to inflict the injury. The law punishes not only where the act is characterized by a vicious intent, but also when it is committed without specific intent or desire to inflict injury, but with such heedless indifference to the consequences likely to ensue from it as amounts to a wantonness and recklessness as vicious and as justly meriting punishment as an affirmative evil intent. That damages may be recovered from an employer for injuries inflicted wantonly and recklessly or intentionally by his employé while acting within the general scope of the employment is settled by the decisions of this court. Gilliam v. Railroad Co., 70 Ala. 268; Railway Co. v. Wildman, 119 Ala. 565, 24 South. 764; Cable Co. v. Brantley, 107 Ala. 683, 18 South. 321. And in such case there may be recovery of punitive damages. Telegraph Co. v. Seed, 115 Ala. 670, 22 South. 474; Telegraph Co. v. Cunningham, 99 Ala. 314, 14 South. 579; Railroad Co. v. Sellers, 93 Ala. 9, 9 South. 375; Railroad Co. v. Frazier, 93 Ala. 45, 9 South. 303; Railroad Co. v. Whitman, 79 Ala. 328. The fact that the person who shoved, kicked, or knocked plaintiff off the car was the conductor of the train of which the car constituted a part, taken in connection with common knowledge as to the duties of a conductor, was quite enough to authorize the submission to the Jury of the question whether his conduct towards the plaintiff was within the scope of his employment. The rulings of the trial court were in harmony with these views of the law, and its judgment must be affirmed. Affirmed. (125 Ala. 372) GAMBLE et al. v. C. AULTMAN & CO. (Supreme Court of Alabama. April 17, 1900.) FRAUDULENT CONVEYANCES JUDGMENT DEBTOR-CONVEYANCES TO CHILDREN-DEFENSES-CONSIDERATION-GOOD FAITH-ALLEGATIONS OF FACTS- -SUFFICIENCY - PAYMENT OF DEBT. 1. An answer denying that the conveyances by a judgment debtor to his children were voluntary, and alleging an interest in the lands, and a purchase in good faith, for valuable consideration, without notice of the lien and before the judgment, was insufficient, since the burden was on defendants to overcome the presumption of unfairness, and allegations of the facts showing good faith, and when and how the consideration was paid, were essential. 2. A conveyance of lands worth $2,000 by a judgment debtor to his children, in consideration of the payment by them of another debt of $1,100, was fraudulent as to the judgment creditor. Appeal from chancery court, Blount county; John C. Carmichael, Chancellor. Bill by C. Aultman & Co. against W. K. Gamble and others. From a decree in favor of the complainant, defendants appeal. Affirmed. The bill in this case was filed by the appellee, C. Aultman & Co., as a creditor of John Gamble, and seeks to have declared void and annulled certain conveyances of property made by John Gambie to his corespondents, who are his sons and daughters, on the ground that said conveyances were voluntary, and made to hinder, delay, and defraud complainant, who was a judgment creditor. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for. From this decree the defendants appeal, and assign the rendition thereof as error. W. T. L. Cofer, for appellants. Emery C. Hall, for appellee. TYSON, J. The bill in this cause was filed to have declared fraudulent certain conveyances executed in 1890 by the respondent John Gamble to his children, his co-respondents. It appears from the averments of the bill that Gamble's indebtedness to the complainant arose in 1884, and was reduced to judgment on March 22, 1890; that executions were issued upon this judgment, and returned, "No property found." The bill charges that the several conveyances made by Gamble to his co-respondents were voluntary. The answer of the respondents, which was a joint one, after admitting the existence of the judgment owned by the complainant, simply denies the allegations of the bill that charges the conveyances to be voluntary, and the consideration recited in those conveyances to be fictitious and simulated, with the additional allegation "that they have an interest in the lands described in the bill; that they purchased the said lands in good faith, for a valuable consideration, without notice of plaintiff's lien, and before judgment was obtained against John Gamble." The complainant's debt was shown undisputedly by the evidence to have been in existence at the time the conveyances assailed were executed. So, also, it is shown by the evidence that executions upon the judgment were returned, "No property found." These two facts being shown, the burden of proof was upon the respondents of showing that the sales by John Gamble to them were fair, and made in good faith; and also upon them to show that the considerations were valuable ones, and that the prices they paid for the lands were not less than their value. In other words, the burden is upon them to overcome the presumption of unfairness and mala fides in the transaction. Wood v. Pebbles (Ala.) 25 South. 723, and authorities there cited; Halsey v. Connell, 111 Ala. 221, 20 South. 445; Freeman v. Stuart (Ala.) 24 South. 31; J. B. Brown Co. v. Henderson (Ala.) 26 South. 199. In order to lift this burden, however, affirmative averment of the facts relied on as constituting the consideration is as essential as satisfactory proof of their existence. The respondents, in order to be accorded the advantage of evidence offered in support of the bona fides of the transaction, should have alleged in their answers the facts showing good faith, the actual payment of an adequate consideration, and how, when, and in what the consideration was paid. As said by Mr. Daniell (1 Daniell, Ch. Prac. 711, 713): "It is of great importance to the pleader, in preparing an answer, to bear in mind that, besides answering the plaintiff's case as made by the bill, he should state to the court upon the answer all the circumstances of which the defendant intends to avail himself by way of defense; for a defendant ought to apprise the plaintiff by his answer of the nature of the case he intends to set up, and that, too, in a clear, unambiguous manner; and, in strictness, he cannot avail himself of any matter of defense which is not stated in his answer, even though it should appear in his evidence." The answer must put in issue all the facts on which the defendant relies in bar of the relief sought by the bill, and evidence cannot be adduced of facts outside of these issues; otherwise, the answer does not apprise the complainant of the line of defense which will be resorted to, nor afford him that opportunity for preparation to meet it which is the leading purpose of all pleading, and which the complainant is always entitled to with respect to a matter of defense affirma tive in character, and relied on to defeat and overturn a prima facie case made by the bill. Wood v. Pebbles, supra; Freeman v. Stuart, supra; Robinson v. Moseley, 93 Ala. 70, 9 South. 372; Moog v. Barrow, 101 Ala. 209, 13 South. 665. The answers of the respondents in this case being wholly insufficient in averring affirmative matter of defense, the burden of which was upon the respondents to aver and prove, and being fatal to the rights of the complainant, there was no error committed by the chancellor in granting the relief sought by the complainant's bill. An examination of the testimony in this case illustrates forcibly the reason for the doctrine which we have announced. Gamble, the insolvent debtor, in his testimony says that the sole consideration for the deeds which he executed was the payment by his children, who are his co-respondents, of $1,100 which he owed Foust. He shows in his testimony that the lands were worth $2,000,-$900 more than the amount paid by his grantees to Foust. His testimony makes the transaction, as against the complainant, fraudulent. Some of the respondents undertake to set up by their testimony adverse possession to a portion of the lands for more than 10 years before the execution of the conveyance to them by their father. All of them, however, admit that as a part of the consideration of the deeds to them was the payment by them of the Foust debt, and it is our opinion that the sole consideration for these conveyances was as testified to by Gamble, the father, the insolvent debtor. The decree of the court below must be affirmed. LEVY (125 Ala. 522) BRITISH & AMERICAN MORTG. CO., Lim- 1. An attachment is leviable on an equity of redemption in lands. 2. Where a conveyance by a partner to his wife on the day of the levy by a creditor of an attachment on the property conveyed was attacked as fraudulent, answers which admitted the execution on such day, and did not deny the existence of the indebtedness, but alleged execution before the levy of attachment to pay a bona fide debt owing as stated in the deed, were insufficient as a basis for affirmative relief, since it was necessary to state the detailed facts of the indebtedness and its payment, and receipt of the deed in payment thereof at fair valuation, without reservation, to the husband's benefit. 3. A grantor testified that a conveyance to his wife in 1892, reciting as consideration moneys received from her estate, amounting, with interest, to $1,900, was made in consideration of $225 so received by him in 1858, $300 received in 1861, and about $73 received 10 years before the conveyance; that it was executed and accepted in full discharge of the debt on the same day, but prior to levy of an attachment on the property by his creditor. Code 1852, §§ 1982, 1983, 1986, in force in 1858 and 1861, authorized a husband to receive and control his wife's property without liability for rents, income, or profits. At the date of conveyance the property was incumbered for $1,944, and there was testimony showing its value to be from $3,500 to $4,500, which was only disputed by testimony of one interested in maintaining the deed's validity that it was worth from $2,500 to $3,000. Held that, since under such Code sections the husband was not liable for interest on his wife's moneys, the consideration for the deed was insufficient, and it was fraudulent as to such creditor. 4. Where a mortgage did not authorize the mortgagee to purchase at sale thereunder, a clause therein that a sale should not be affected in any manner by irregularity in making the same did not estop the mortgagor to disaffirm a sale thereunder to the mortgagee. 5. A person holding possession of lands under contract of purchase from a mortgagee, which had purchased without authority at a sale under its own mortgage, is not within the exemption of Code, § 1540, which provides that persons holding possession under color of title, in good faith, are not responsible for damages and rents for more than one year. Appeal from chancery court, Blount county; John C. Carmichael, Chancellor. Bill by George C. Norton and others against the British & American Mortgage Company, Limited, and others, for an accounting of rents and profits, to ascertain a balance due on a mortgage debt, and to redeem lands. From a decree in favor of the complainants, defendants appeal. Affirmed. The bill avers the following facts: On the 6th day of December, 1892, B. R. Williams, H. W. Williams, and R. L. Williams, as partners under the name of B. R. Williams & Sons, were indebted to said J. M. Robinson & Co., which was composed of complainants and J. M. Robinson, deceased, in the sum of $1,138.80, for goods before that time sold to them. On said date said Robinson & Co. sued out an attachment from the circuit court of Cullman county against the said B. R. Williams, H. M. Williams, and R. L. Williams as partners, and a branch of this attachment was placed in the hands of the sheriff of Blount county on the 6th of December, 1892, and was by him, on the same day, levied on the property in controversy as the property of said B. R. Williams, which is situated in said county, and then belonged to him. The attachment was duly returned to the circuit court of Cullman county. Upon the levy of said attachment a portion of said land was claimed by B. R. Williams as exempt, which claim was contested by the complainants. By reason of the delays in the transaction of the business of said court, neither of said causes was reached or called for trial until the 18th day of March, 1895, when a judgment was rendered in said contest in favor of the complainants, and the same day a judgment was rendered in favor of the plaintiffs in said attachment suit for the sum of $1,336.38 and costs, condemning said lands to be sold for the payment of said debt, and directing a venditioni exponas to issue for that purpose. Said writ was issued, and on the 16th day of April, 1895, was placed in the hands of the sheriff of Blount county, who, after giving notice of the time, place, and terms of sale as required by law, offered said lands for sale on Monday, May 20, 1895, and complainants, being the highest bidder, purchased the same for the sum of $35.80, which was paid to said sheriff, who executed to complainants a deed to the land, dated and acknowledged on May 25, 1895, a copy of which is attached to the bill. This is an ordinary sheriff's deed to the land in controversy. No other payment has been made on said judgment. On the 18th day of April, 1888, the said B. R. Williams gave a mortgage on said lands to the British & American Mortgage Company, Limited, for the sum of $3,000 to secure money loaned. A true copy of the mortgage, with the indorsements on it, is attached to the bill as an exhibit. This is a mortgage executed by said B. R. Williams and Jane Williams, his wife, to said mortgage company, and is dated April 18, 1888, to secure the sum of $3,000, which is evidenced by five installment notes, due, respectively, on the 1st day of November, 1888, 1889, 1890, 1891, and 1892, and provides that, if default is made in the payment of any of said notes for 15 days after it becomes due, the whole sum of money in said mortgage secured might, at the option of the holder of said notes and at said holder's option only, and without notice, be declared due and payable, and the party of the second part, his agent, attorney, or assignee, might proceed to sell said lands at public outcry to the highest bidder, etc., after giving certain notice, etc. There is no authority given in said mortgage to the mortgagee or its assigns to purchase at such sale. The mortgage was duly witnessed and acknowledged so as to convey the homestead, and was filed for record and recorded in the office of the probate judge of Blount county, Ala., on May 5, 1888. The mortgage debt was partially paid, but default was made in the payment of a portion of it, but to what extent is not averred; and said land was sold by said company under the power contained in the mortgage on the 15th of March, 1893, for the sum of $2,215.05, and purchased by one Albert L. Richardson, to whom the mortgage company executed its deed. This purchase was made for said company, and Richardson did not pay, and was not expected to pay, anything on account of said purchase, but shortly after conveyed said lands to said company without any consideration. The bill averred that the mortgage company was in fact the purchaser of said lands at said sale, and that the same is voidable at the instance of complainants, who are entitled to redeem the same, and who file this bill for that purpose. |