United States Rolling Stock Co. v. Weir , 96 Ala. 396 ( 1892 )

STONE, C. J.

The City Court did not err in overruling defendant’s demurrer to the complaint. As we understand the pleader, the principal defect complained of was the narrow plank — the “way” by which the defective and leaking-pipe was to be reached. If it was part of the duty of plaintiff’s intestate to look after the pipe in question, and to stop the leak should one occur, it can not he questioned that a single plank, such as is described in the complaint, afforded a very insecure foot-way, at the height the testimony shows it to have been placed. The complaint is sufficient.- — Code of 1886, § 2590. These remarks apply solely to the way or means of approach to the alleged defective pipe. Such defective way, if it existed, was inherent in the very nature of the appliance, and could not fail to be understood by every one who looked upon it and had knowledge of the uses to which it was to be applied.

But the foot-way was not made the sole ground of complaint. It is alleged that the said pipe and its connections were not in proper order. The averment is, “that though such fact was unknown to plaintiff’s intestate, the said pipe and its connection with such boiler were so very defective in their condition as to be dangerous, which fact was well known to the officers and agents of said defendant in charge of said work, but unknown to the said Weir,” (intestate). As pleading, this averment is sufficient. A question, however, which grew out of it was raised in the charges which we will consider further on.

The complaint in this cause was filed April 17, 1889. On May 15, 1889, the defendant filed a demurrer to the complaint, and on January 22, 1890, the City Court ruled that the complaint was sufficient, thus overruling all the grounds of demurrer. No further order or proceedings appear to have been taken until December 2, 1890, when the defendant filed several pleas in bar, and among them, “that plaintiff is not now, and was not at the commencement of this suit, the administratrix de bonis non of Charles Y. Weir, deceased.” The case was tried on the merits June 4, 1891, and verdict and judgment rendered for plaintiff. The bill of exceptions informs us that the plea of ne unques administratrix, on the motion of plaintiff, was disallowed and stricken from the file, “because the same had not been filed within thirty days after the overruling of said demurrers.” Defendant excepted to this ruling. The bill of exceptions'does not state whether this motion and ruling were had when the trial on the merits was taken up, or before that time.

The City Court of Anniston was created by act approved February 25, 1889. Sess. Acts 1888-89, p. 564. By section 6 of that act it is declared that defendants must plead or demur to the complaint within thirty days after service of summons and complaint upon them. We find no other provision on the subject, either in that statute, or in the act amendatory thereof, approved February 18,1891. Sess. Acts 1890-91, p.' 871.

Defendant certainly conformed to the letter of the statute by demurring to the complaint within thirty days after service of summons, and we are not informed that any motion was made for judgment for want of a plea, either before or after the pleas were filed. We hold that under the circumstances, if the questions were properly raised, the motion to reject the plea carne too late, and that it ought to have been overruled. We discriminate between a case like the present one, and a suit to which neither plea nor demurrer is interposed within thirty days after service of process. Allowing the thirty days to elapse without offering defense of law or fact, the defendant disobeys the positive mandate of the statute, and places himself at the mercy of the court, without the right to complain. — Reed Lumber Co. v. Lewis, 94 Ala. 616. We do not, however, make this ruling the ground of our judgment. The record recites that the plea had been filed, and on motion of p]aintiff it was stricken from the file. In such case, the court’s ruling and judgment on the motion should have appeared in a judgment-entry. The bill of exceptions is the proper place to show the circumstances, but the ruling itself was a judgment, and should appear in the record proper. — 8 Brick. Dig. p. 78, §§ 4, 7.

In the case we have in hand, the letter of the statute was not violated, for the demurrer was interposed within the thirty days. And while we do nob doubt the right of the plaintiff, after demurrer overruled, to move for judgment for want of a plea, if one was not seasonably filed, we hold that any defense to the merits was in time, if offered before default claimed.— Woosley v. M. & C. Railroad Co., 28 Ala. 536; Wagnon v. Turner, 73 Ala. 197. “Ne unques administratrix is a plea in bar. — 7 Amer. & Eng. Eneye. of Law, 380-81.

There is nothing in the exception reserved to the rejection of the juror. Jurors should be impartial and free from bias or prejudice.

The trial court gave the following instructions to the jury, to which an exception was reserved: “If the jury believe from the evidence that Charles Weir sustained the injuries which resulted in his death, by reason of any defect in the ways, works, machinery, or plant of defendant while performing the duties imposed upon him by his employment, which defects were known to defendant, or its officers or agents in charge of such ways, works, machinery, or plant, or, which it or they should have known by the exercise of ordinary care of such defendant, or its officers or agents in charge, then they must find for plaintiff.” As we interpret this charge, it instructs the jury to find for the plaintiff, if the defect in the ways, works, &c., which caused the injury, was, or, with proper diligence, should have been known to the defendant, its officers or agents, at the time the injury was suffered. Commenting on similar language in a similar case, in Seaboard Manufacturing Company v. Woodson, 94 Ala. 143; we said: “Unless there had been a reasonable opportunity to effect a remedy, it could not be said that the failure to do so was negligent. The defendant must have had sufficient time to remedy the defect after its discovery, before it could be.chargeable with negligence in failing to effect such remedy. Mere knowledge, without the opjDortunity to act on it, would not constitute negligence. ” We can not know whether the verdict of the jury was based on the alleged narrowness of the foot-plank, or on the defective condition of the connecting pipe, or perhaps on each. Testimony was introduced as to each. On the possibitity that the verdict rested wholly or in part on the condition of the connecting pipe, the charge was erroneous.

Beversed and remanded.