not the children of Charles Godwin, deceas- | since that date resided with your oratrix, and ed, but were children of Elizabeth Godwin has not in any way contributed to her supby two other men, both born before she ever port; that the said desertion of your oratrix met Charles Godwin, and that she, the said Elizabeth Godwin, as the widow of said Charles Godwin, inherited the mortgaged premises from him as his sole heir at law. The decree of the court below is hereby affirmed, at the cost of the appellants.

has continued since the said date, and has been willful, obstinate, and continued for more than one year prior to the filing of this bill; that the said defendant deserted your oratrix without any just cause, and that your oratrix has always demeaned herself in a proper manner, and had performed all of her duties towards the said defendant as his wife prior to said desertion; that there was no issue born of said marriage; that since that date your oratrix has been compelled to support herself by her own efforts, without any aid or assistance from the said defendant."

[1] The first error assigned questions the sufficiency of the pleading as being mere conclusions of law, and in that it fails to show a demand and refusal to return to the cohab

1. DIVORCE (§ 93*)-PLEADING-SUFFICIENCY. In a bill for divorce upon the ground of de-itation, or to contribute, or that the husband sertion, it is sufficient to allege the statutory had sufficient means to contribute, or that language, coupled with the statement that the the wife was unable to support herself. husband without cause left the wife penniless, These objections, though urged on a demurrer and continued away from her for the statutory We have not period without in any wise contributing to her to the bill, are untenable. merely a reiteration of the statutory language, but the specific statement of fact that the husband without just cause left the wife penniless, and continued away from her for more than one year, without in any wise contributing to her support.

support.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 292-307; Dec. Dig. § 93.*] 2. DIVORCE (§ 37*)-ABANDONMENT-DEFENSE. When the husband without cause abandons the wife, and makes no offer to resume the marital relation, she will not be denied a divorce because she makes no effort to bring him back. [Ed. Note. For other cases, see Divorce, Cent. Dig. 88 27, 107-134, 136-138; Dec. Dig. § 37.*]

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

Bill by Cora Stewart Fielding against William Campbell Fielding, for divorce. From decree for complainant, defendant appeals.

Affirmed.

D. C. Campbell, of Jacksonville, for appellant. Axtell & Rinehart, of Jacksonville, for appellee.

COCKRELL, J. This is an appeal from a decree of divorce granted the wife, upon the statutory ground of "willful obstinate and continued desertion of complainant by defendant for one year."

The allegations of the bill as to desertion are: "That your oratrix and the defendant, William Campbell Fielding, were married in Volusia county, Fla., on the 21st day of February, 1909; that your oratrix and the said defendant lived together as man and wife at Sanford, in Orange county, Fla., from about the date of their said marriage up to and until on or about the said 25th day of May, A. D. 1910; that on or about the said 25th day of May, A. D. 1910, the said defendant, without any just cause, deserted your oratrix at Sanford, Fla., leaving her without any money and without any means of support; that the said defendant has not

In Walker v. Walker, 64 Fla. 536, 59 South, 898, we held that if a husband by his own acts intentionally brings the cohabitation to an end, and by his own acts keeps it at an end for the statutory period, showing no evidence of a reasonable purpose to renew his marital relations, he is guilty of desertion and she is entitled to a divorce on that ground. See, also, Hunt v. Hunt, 61 Fla. 630, 54 South. 390.

If the failure of the husband to return or to contribute was due to providential cause, or to the acts or condition of the wife, these would be defensive matters.

The evidence would support a finding that the husband abandoned the wife at a time

when she was most needy, and made no effort, until after the statutory time had elapsed and the bill had been filed, to perform any

marital duty, and even then the slight effort made was with a view solely to render some financial assistance as being less expensive than the divorce proceedings. He makes no offer to resume the marital relation.

[2] The only weakness we observe in the complainant's case is the absence of effort on her part to bring back the errant husband, but the courts do not hold the wife to the same accountability for failure to seek the return of her husband. Sargent v. Sargent, 36 N. J. Eq. 644.

The decree is affirmed.

SHACKLEFORD, C. J., and TAYLOR, HOCKER, and WHITFIELD, JJ., concur.

HARBISON-WALKER REFRACTORIES
CO. v. SCOTT.

(Supreme Court of Alabama. Feb. 12, 1914.)
1. NEGLIGENCE (§ 112*) - ALLEGATIONS
COMPLAINT-WANTON NEGLIGENCE.

OF

A complaint alleging that defendant was engaged in blasting on its premises, and, on being notified by plaintiff that it was injuring her residence thereby, defendant "wantonly and recklessly used explosives in such quantities and to such an extent as that the blast or explosion therefrom shook and jarred the plaintiff's house," sufficiently alleged wanton negligence in blasting; the allegations characterizing the extent of the blasting and the quantity of explosives used, and not merely the act of blasting.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 185; Dec. Dig. § 112.*] 2. EVIDENCE (§ 506*)-EXPERT TESTIMONY.

An expert witness was properly asked, in an action for damage to property from blasting, whether the blasting was heavier than was reasonably necessary to remove solid rock, and severe blasting, even if that was the question at

whether solid rock could be removed with less

issue.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 548-555; Dec. Dig. § 165.*] 5. EXPLOSIVES (§ 12*)—WANTON INJURY-JURY QUESTION.

Action by Dixie Davis Scott against the Harbison-Walker Refractories Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The ninth count is as follows: "Plaintiff claims of defendant the other and further sum of $500 as damages for that plaintiff is the owner of a certain lot in the city of Piedmont, Ala., known as lot 52, in block 52, and of a two-story frame residence thereon situated. [Here follows a fuller description.] And defendant, on, to wit, March 1, 1911, and on divers days thereafter, was engaged by and through its agents and servants in mining and quarrying stone at or near Piedmont, Ala., and in said mining or quarrying operations defendant used powder, dynamite, or other explosives; and plaintiff avers that she notified defendant's agent in charge of said work that it was injuring and damaging plaintiff's said residence by reason of the explosions in and about its said mining or quarrying operations, and requested said agents

or servants of defendant to desist from said
injuries and damages; and plaintiff avers
that, notwithstanding defendant's agents and
servants were informed of the damage and
injury that was being done to plaintiff's prop-
erty, nevertheless the defendant's said serv-
ants or agents, who were engaged in said
mining operations, after being so informed,
wantonly and recklessly used the explosives
in such quantity and to such an extent as that
the blasts which were exploded therefrom
shook and jarred plaintiff's said house, great-
lows detail of the injury.
ly injuring and damaging same."

Here fol

The evidence relative to the qualification of George D. Harris to answer the questions

In an action for injury to plaintiff's prop- propounded in assignments of error 6 and 7, erty by excessively heavy rock blasting, evi- is as follows: "I have had a great deal of exdence held to make the question of wanton neg-perience in the blasting of solid rock like ligence a jury question.

[Ed. Note. For other cases, see Explosives, that up in the mountain. My experience was Cent. Dig. §§ 9, 10; Dec. Dig. § 12.*] in helping to build a number of railroads,

6. TRIAL (8 253*)-INSTRUCTIONS-IGNORING and on all of these railroads I have done ISSUES.

A requested charge, in an action for damage to property by rock blasting, that the burden is on plaintiff to show that defendant used dynamite in excess of what was reasonably necessary to remove the rock, was properly refused, as excluding from consideration other negligent blasts than those which resulted from an excess of explosives.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] 7. EXPLOSIVES (§ 12*)-ACTION FOR DAMAGES -ADMISSION OF EVIDENCE.

Assign

blasting. The heaviest blasting I have done was on the Seaboard, out near Ragland, in a rocky country." The sixth assignment of error is as follows: "Question propounded to Harris, over objection of defendant: 'I will ask you to state whether or not, in your judgment, the blasting that was done by defendant there was heavier than was reasonably necessary to remove solid rock?" ment 7: "Question to same witness over objection of defendant: 'I will ask you to state In an action for damage to property by if solid rock can be successfully removed with using an excess of explosives in rock blasting, less severe blast than the blasting of this deevidence of the vibratory effect upon other buildings in the neighborhood was admissible to fendant, judging from what you saw, and the show the character and extent of the explosives.jar and vibrations you experienced?' It fur[Ed. Note.-For other cases, see Explosives, Cent. Dig. §§ 9, 10; Dec. Dig. § 12.*] Anderson, C. J., and McClellan and Mayfield, JJ., dissenting in part.

ther appears from the evidence of this witness that he was living in the house alleged to have been injured while the blasting was going on, and that he saw the result of the

Appeal from City Court of Anniston; Thom- blast, and felt the vibration. as W. Coleman, Jr., Judge.

Charge G is as follows: "The court charges

the jury that the burden of proof is on plain- | tioned. Culver v. Ala. Md. Ry. Co., 108 Ala. tiff in this case to show that defendant used 330, 334, 18 South. 827; McNamara v. Logan, dynamite in excess of what was reasonably 100 Ala. 187, 196, 197, 14 South. 175; Ala. C. necessary to have loosened or removed said | C. & C. Co. v. Pitts, 98 Ala. 285, 289, 290, 13 rock." South. 135. The fact that an otherwise propWillett & Willett, of Anniston, for appel-er question propounded to an expert witness lant. Knox, Acker, Dixon & Sterne, of An- will elicit an opinion from him in practical niston, for appellee.

DERSON, C. J., and MCCLELLAN and MAYFIELD, JJ., concur in the opinion, except as indicated, and hence dissent from the conclusion to affirm.

FULLER v. AMERICAN SUPPLY CO.

(Supreme Court of Alabama. Feb. 12, 1914.) 1. HOMESTEAD (§ 32*)-EXEMPTIONS-REQUISITES-OCCUPANCY.

Occupancy is essential to the privilege of homestead exemptions extended by the Constitution and laws of the state to town lots and country acres "owned and occupied" by residents.

[Ed. Note.-For other cases, see Homestead, Cent. Dig. §§ 40-43; Dec. Dig. § 32.*]

Barnett & Bugg, of Monroeville, for appellant. Hybart & Hare, of Monroeville, for appellee.

SAYRE, J. There is but one question of any consequence in this case, and that is whether under the evidence admitted by the court and that offered by the appellant, but rejected in the court below, the court could properly say as matter of law that appellant was not entitled to a homestead ex

emption as against appellee's execution.

Appellant, defendant in execution, had a dwelling upon the land in question, a parcel slightly in excess of one acre in area, where he lived with his family prior to the year 1911. In the spring of 1911 he removed his

2. STATUTES (§ 147*)-REVISION-CHANGE OF family to a dwelling house-some 150 yards

LANGUAGE-EFFECT.

Alteration of phraseology, or the omission or addition of words in the codification of a statute, will not be regarded as changing the legislative intent, unless language is employed which is not susceptible of any other reasonable construction.

away-owned by a corporation of which he was an officer and stockholder, and by which he was employed at its sawmill. At no time prior to September 12, 1912, the date upon which appellee's execution was levied, did he file a declaration of claim of homestead exemption under section 4192 of the Code. In the meantime one Parker occupied

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 216; Dec. Dig. § 147.*] 3. HOMESTEAD (§ 181*)-EXEMPTIONS-TEM- the property in suit for about 30 days, but on PORARY ABSENCE-DECLARATION-QUESTION what terms does not appear. He may have FOR JURY. been subject to summary ouster at any time. Code 1907, § 4192, provides that when a According to the testimony offered by appeldeclaration of claim to homestead has been filed in the office of the judge of probate, leaving the lee, the dwelling house was allowed to fall homestead temporarily or leasing it shall not into a state of delapidation and presented constitute an abandonment thereof, or render it an appearance of decay. On the other hand, subject to levy and sale. Held, that the filing appellant proved that he had cultivated “the of the declaration is not an indispensable con- garden and land" around the house, that he dition on which the owner of a homestead may protect his exemptions during temporary ab- frequently visited the property, and had kept sences; and hence, where such owner, without some part of his household goods stored filing a declaration, and without leasing his there, and offered to prove that his servants homestead, removed his family to another dwelling, where he remained from the spring of 1911 had occupied the servant house on the lot in to September, 1912, there was no abandonment suit, and that the house to which he had as a matter of law. removed was more convenient to his employment at the mill.

[Ed. Note.-For other cases, see Homestead, Cent. Dig. § 401; Dec. Dig. § 1812.*] Appellant seeks to bring his case within 4. HOMESTEAD (§ 181*)-EXEMPTION-ABAN- the influence of the decision in Dicus v. Hall, DONMENT-INTENTION-QUESTION FOR JURY. 83 Ala. 159, 3 South. 239, the principle of The owner of a homestead, consisting of which has been repeatedly recognized by this an acre of ground with a dwelling and servant court. Beard v. Johnson, 87 Ala. 729, 6 house in a village, removed his family to a South. 383; Hodges v. Winston, 95 Ala. 514, dwelling some 150 yards away, owned by a corporation of which he was an officer, and by 11 South. 200, 36 Am. St. Rep. 241; Jaffrey which he was employed at a sawmill, where v. McGough, 88 Ala. 648, 7 South. 333; he remained until September, 1912. He did not rent the house on the homestead, but cultivated the garden and land around the house, frequently visited the same, kept a part of his household goods stored there, and offered to prove that his servants occupied the servant house on the lot, and that the house to which he removed was more convenient to his employment. Held, that whether he intended to abandon the homestead by such removal was for the jury.

[Ed. Note. For other cases, see Homestead, Cent. Dig. § 401; Dec. Dig. § 1812.*]

Thacker v. Morris, 166 Ala. 395, 52 South. 73. The principle of Dicus v. Hall is that detached parcels of land, collectively not in excess of the limit, may be claimed as exempt where they have been owned and occupied by the same person as one and the same homestead, and as a direct source of family support. But we are of opinion that the doctrine of that case can have no application to the facts of this case for the reason that the property in suit appears to

Appeal from Circuit Court, Monroe Coun- have been a lot in the town or village of ty; John T. Lackland, Judge.

Action by the American Supply Company against J. H. Fuller. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Nadawah, whereas the doctrine of that case is to bring an outlying tract of agricultural land, cultivated for the production of supplies for the "comfort, wants, and requirements" of the family, within the exemption

Appellee, on the other hand, contends that this case must be determined in his favor on section 4192 of the Code, and cites Land v. Boykin, 122 Ala. 627, 25 South. 172, as conclusive authority for his interpretation of the section and the rights of the parties. We think there is a misapprehension of the purpose and effect of the statute and the meaning of the decisions in which it has had consideration.

of rural lands provided by the constitutional | tended to town lots and country acres "ownand statute law of the state. The rule has ed and occupied" by residents of the state. no application to noncontiguous urban lots. Occupancy is essential. Before the statute in Tyler v. Jewett, 82 Ala. 93, 2 South. 905; question it was never supposed that a homeSeabury v. Hemley, 174 Ala. 116, 56 South. stead exemption could be lost by temporary 530. withdrawals, as, for example, where the owner leaves for the purpose of educating his children, to recuperate his health, to travel in foreign parts, to attend a camp meeting, to engage temporarily in trade, to seek work, to raise a crop, or to hold official position, intending all the while to return. Occasions for some such absences come to nearly every one, and they were not regarded as constituting an abandonment. In such cases the owner was regarded in law as in the actual occupancy of his homestead. Any other interpretation of such absences would make of the homestead, not a refuge, but a prison. An owner, absent on such occasion, has all along been commonly regarded as an actual occupant, and he must be still so regarded, unless the statute has clearly provided to the contrary. A homestead, once acquired, is presumed to continue until a change, facto et animo, is shown. Murphy v. Hunt, 75 Ala. 438; Caldwell v. Pollak, 91 Ala. 357, 8 South. 546; Huffman v. Smyth, 47 Or. 573, 84 Pac. 80, 114 Am. St. Rep. 938, 8 Ann. Cas. 678. These principles have been made familiar by the previous decisions of this court, but they have been referred to because necessary to give point to our conclusion.

V.

Of course the statute has no operation in a case where the owner quits his homestead permanently, that is, without a present and continuing intention to return, because in such case the homestead is forfeited without regard to declaration filed; in such case the declaration of claim would be a fraud upon the statute, and ineffectual. Beckert Whitlock, 83 Ala. 131, 3 South. 545. In this state prior to 1877 a leasing for a term was considered an abandonment of the homestead for the reason that by creating a leasehold term in another the owner deprived himself of the power to return during the term. Boyle v. Shulman, 59 Ala. 566; Kaster v. McWilliams, 41 Ala. 302; Stow v. Lillie, 63 Ala. 257. But in 1877 the Legislature, by an act the title of which foretold a purpose "to protect exempted property." (Acts 1876–77, p. 43), provided "that when a person has a right of homestead, a temporary quitting or leasing the same for a period of not more than twelve months at any one time shall not be deemed to be an abandonment of it as his homestead," if he shall file a declaration, etc. Section 26 of the act. This section of the act was literally transcribed into the Code of 1876 as section 2843. In all later Codes, beginning with 1886 (section 2539) it has been given this form: "When a declaration of claim to a homestead exemption has been filed in the office of the judge of probate, leaving the homestead temporarily, or a leasing of the same shall not operate an abandonment thereof, or render it subject to levy and sale; but the right thereto shall remain the same as if the actual occupancy thereof had continued."

*

[1] In arriving at the meaning and effect of this statute in its original and revised forms, the purpose declared in the title, the body of related law, and the settled policy of the state, must be consulted. One unmistakable effect of the statute, recognized all along, has been to enlarge the rights and privileges of homestead owners, in that they are permitted to let their homesteads to rent on condition that they file the declaration. But temporary quittings, where there is no letting to rent, are upon a different footing. The privilege of homestead exemption is, by

We have examined many of our cases. and in all of them in which it has been held that the owner forfeited ipso facto, his exemption by an absence intended to be temporary, he had let his homestead for a term. This was so even in Land v. Boykin, supra, though in that case there was a reservation of a part of the premises, namely, the dwelling, orchard, and garden. In that case the court seems to have attached no importance to the reservation; but a different view of the effect of a like fact, with like surroundings, was taken by the court in the later case of Bland v. Putman, 132 Ala. 613, 32 South. 616, where it was held sufficient to take the question of intention and the case to the jury.

It must be conceded, also, that in Porter v. Harrison, 124 Ala. 296, 27 South. 302, the homestead claimant was decreed to have lost his right, although it did not appear that he had let his place to rent during his absence; but it seems clear that the court there proceeded on the theory-indeed, the language of the court is that the claimant had established his residence elsewhere, had even registered as a voter and voted in another precinct, and for that reason his effort to re-establish his lost homestead in the place he had left by filing a claim of exemption was of no avail. The controlling principle of the case was that no man can have two places of legal residence, two domiciles, at one and the same time.