Moss v. Mosely , 148 Ala. 168 ( 1906 )

DENSON, J.

— This suit was commenced on the 12th day of September, 1902, by W. L. Mosley as the administrator of the estate of Geo. W. Mosley, deceased, against M. A. Moss. On the 30th day of December, 1902, on the suggestion by the plaintiff, of the death of the defendant, since the commencement of the suit, leave was granted by the court to the plaintiff to revive the suit against defendant’s personal representative, when made known. On the 25th day of March, 1903, the court made an order reviving the suit against L. K. Moss as the administrator of the estate of M. A. Moss, deceased.

The first count of the complaint, as last amended, was in this language: “Plaintiff, as administrator of the estate of Geo. W. Mosley claims of defendant the sum of ten thousand dollars damages, for that the defendant on, to-wit, the 22d day of August, 1902, was engaged in operating a brick works at or. near Desoto, Alabama, in Jefferson county, Alabama, and that at said time and place plaintiff’s intestate, who was a boy of between 13 and 14 years of. age, being under the age of 14, and inexpeiienced, was in-the employment of said defendant in and about said works, and that while employed at said time and place plaintiff’s intestate was killed; plaintiff avers that said death was proximately caused by reason of the negligence of a person in the employment or service of the defendant, to whose orders or directions the plaintiff’s intestate at the time of said death was bound to conform and did conform, and that said'death resulted from his having so conformed, namely, G. D. Etter, and consisted in this: that said Etter negligently instructed plaintiff’s intestate to perform dangerous work, cleaning up in and about said machinery or movable parts of said brick works, viren he knew that plaintiff’s intestate was inexperienced and that said work was necessarily dangerous for him to perform. So that, as a proximate result thereof, plaintiff’s intestate was killed, all to plaintiff’s damage as aforesaid.” Manifestly, this count was framed with respect to subdivision 3 of section 1749 of the code of 1896, “the employers’ liability act.” The demurrer of the defendant to the count, was overruled, and the ruling of the court forms the basis of the first ground in the assignment of errors.

It is urged in the argument of counsel that the count was defective in not showing that plaintiff’s intestate was killed while in the discharge of the duties of his employment-. This criticism is hypercriticism, when the averments of the count are regarded. The relation of' master and servant is explicitly averred. It also appears from the count that the intestate’s death was caused by the intestate conforming to an order given to him by Etter, to perform work, cleaning up in and about said machinery or movable parts of said brick works, etc., and that Etter was a person in the employment of defendant to whose orders the intestate was bound to conform. It sufficiently appears that he was in the discharge of his duties, doing work for his master at the time he was killed. Next, it is urged against said count, that it is not shown by the count that the dangers of the work that plaintiff’s intestate was set to do were latent or not obvious, nor that they were not known to the intestate, and that he was not fully Avarhed and cautioned as to their existence. In support of this insistence, it has been argued that a servant is presumed to assume all obvious dangers and risks incident to the work which he undertakes to perform even though the Avork is ex-. trahazai-dous. Leaving out of consideration the aver-ments in the complaint that the plaintiff’s intestate was less than 14 years of age; that he Avas inexperienced, and with the knoAAdeclge on the .part of Etter that lie Avas inexperienced, Etter set him to work, etc., we think the insistence and argument are unsound. It may be that the plaintiff’s intestate could have been guilty of such contributory negligence as Avould have barred plaintiff’s recovery, but it does riot follow that he assumed the risk incident to the negligence of Etter, the person to AAdrose orders he Avas hound to conform, and, as it averred, did conform. At least it was not necessary to the validity of the count that it should have been averred that the dangers of the' Avork he Avas set to do were latent or that they were not obvious, or that he Avas not fully Avarned and cautioned as to their existence.—Woodward Iron Co. v. Andrews, 114 Ala. 243, on page 257, 21 South. 440, on page 443; A. G. S. R. R. Co. v. Brooks, 135 Ala. 401, bottom of page 406, 33 South. 181, on page 182; K. C. M. & B. R. R. Co. v. Thornhill, 141 Ala. 215., 37 South. 412; Schroeder v. Chicago & Alton R. R. Co., (Mo. Sup.) 18 S. W. 1094, 18 L. R. A. 827; Reno Employers’ Liability Acts, § 190. The demurrer to count 1 was properly overruled.

The second count Avas framed under subdivision 2 of section 3749 of the code of 1896. It is likewise urged against this count, that it does not show that the plaintiff’s intestate was in the discharge of his'duty Avhen injured. We think the averments of the count afford sufficient answer to tbe insistence. It is further insisted in the brief of counsel that the allegations of negligence in this court are too vague and indefinite. In this respect the count, tested by the many cases decided by this court, is sufficient.—Bear Creck Mill Co. v. Parker, 134 Ala. 293, 32 South. 700; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349; Birmingham S. R. R. Co. v. Cuzzart, 133 Ala. 262, 31 South. 979; S. Carr & Foundry Co. v. Bartlett, 137 Ala. 235, 34 South. 20; A. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 South. 862; M. & O. R. R. Co. v. George, 94 Ala. 214, 10 South. 145; Leach v. Bush, 57 Ala. 145; S. Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35.

The defendant in answer to the complaint, among other pleas pleaded that the plaintiff’s demand was barred by the statute of nonclaim. Notwithstanding, the suit was commenced against M. A. Moss and was revived against her personal representative within 12 months after her death, as is shown by the record, the plea was unchallenged by the plaintiff.—Floyd v. Clayton, 67 Ala. 265. The plaintiff joined issue on tbe plea and filed two special replications numbered 2 and 4. It appears that the presentation and verification, as averred, Avere in substantial compliance Avith the statute. Therefore, the demurrer to replication 2 was properly overruled.—Code 1896, § 133.

The first ground of demurrer to the fourth replication to plea 11 is in this language: “For that it does not appear therefrom that.said claim was presented as required by law, within 12 months after the grant of letters of administration on said estate.” The only objection particularized by this ground of demurrer goes to the time within winch the presentation of the claim was made, and it is evident that the allegations of the replication answer this objection. The insistence of the appellant, however (necessarily based on this ground of the demurrer), is that the nature and amount of the claim are not sufficiently shown by the presentation as allegéd in the replication. If it be conceded that the replication is defective in this respect, the demurrer does not present it, and the court could only look to the grounds of the demurrer as they were assigned in making its rulings. The statute expressly provides that “Any defect or insufficiency in the affidavit may be supplied by amendment, at any time.” — Code 1896, § 133. Tlie affidavit as shown by the amendment set out in the replication was in substantial compliance with the statute, and it appears by the averments of the replication to have been made by leave of the judge of probate. Hence, the second, third, and fourth ground of the demurrer to the replication were without merit. With respect of amendment, there is nothing in the statute, section 133 of the code of 1896, which excludes demands on which suit is pending, therefore, the fifth and sixth grounds of the demurrer to the replication were not well assigned. All other matters sought to be presented for revieAV are contained in the bill of exceptions, and this brings us to a consideration of the motion made by the appellee to strike the bill from the record.

Section 19 of the act to establish the city court of Birmingham, acts 1888-89, p. 1000, is in this language: “That all bills of exceptions relating to the trial of causes in said court must be signed by the presiding judge of said court within sixty days after the day on which, the issue or issues of fact to which said bill of exceptions irelates was tried, unless the time for signing-such bill of exceptions is extended by agreement of parties or by order of the presiding judge, as now authorized by law respecting the signing of bills of exceptions in the circuit court.”

The cause was tried on’ the 16th day of April, 1904. The bill of exceptions was signed on the 14th day of October, 1904.

The record shows that on the 4th day of June, 1904, there Avas filed with the clerk as one of the papers in the cause a paper writing in words and figures to-Avit:

“In the City Court of Birmingham. W. L. Mosley, Admr. v. L. K. Moss, Admr. For sufficient reasons appearing to the court it is ordered that the time for the presentation and signing of a bill of exceptions in above cause be and the same is hereby extended until October 15th, 1904. Chas. A. Senn, Judge.

“We consent that the above order shall be made. John W. Tomlinson, Atty. for Pltf. George Huddleston, Atty. for Def.

“Filed in office tlxis 4tli day of June, A. D., 1904. John S. Gillespy, Clerk & Register.”

No entry of the contents of the paper was made in the minutes of the court. The city court of Birmingham meets on the first Monday in October, and continues in session until the 1st day of July following, so* the paper was filed in tenn time. Bills of exceptions are creations of statute law. Hence, the validity of the paper purporting to be a bill of exceptions, when assailed, must be determined by the interpretation. of the statute or satutes through which its right of recognition is claimed—its validity is asserted. The general law on the subject is contained in chapter 13 of the code of 1896, §§ 612-622. By the very letter- of section 19 of the “practice act” a bill 'of exceptions in a case tried in the city' court of Birmingham may- be legally signed by the presiding judge at any time- within 60 days after the day on which the issue or issues of fact to which the bill relates were trued. It must be observed that no power of extending the time within which the bill may be -signed is conferred upon the court by the act, and in this respect it may be said that the act qualified the general law (section 617 of the code of 1896) so far as it is applicable to the city court. In other words, the authority to' sign the hill within 60 days after the trial, would seem to have been given in lieu of the power of the court to make the extension given by section 617 of the code of 1896. The act provides, however, that the time- for signing may be. extended by agreement of parties ox by order of the presiding judge, “as now authorised by' law respecting the signing of bills of exceptions in the circuit ■ cowrt.” Italics ours.

No argument is necessary to show that the authority or right of the parties by agreement, and of the presiding judge by order to extend the time for the signing of the bill of exceptions as referred to the act, must be ascertained from and controlled by the statute and rules of practice applicable to the circuit court. We must look to them to determine the right of extension and the validity of -such extension. Referring then to the statute it seems, that a distinction is there made between the court and the judge with respect of such extension. See the reasoning of Judge Tyson on this subject in Scott’s Case, 141 Ala. 39, 37 South. 366. See, also, Wright’s Case 136 Ala. 50, 34 South. 187. Section 617 of the code of 1896, confers upon the court in term time the authority to fix a time within which a bill of exceptions may he signed, and provides that the judge in vacation may extend the time. Section 618 of the code of 1896, provides, that, “The parties or their counsel, may by agreement in writing entered into- in term time, fix a time in which the bill of exceptions inay be signed, and may, in like manner extend such time.”

Section 619 provides that “The time fixed by the court or judge may be extended by agreement of the parties or their counsel, and the time fixed by agreement may be extended by the judge in vacation.” It is obvious from the preceding sections that the time fixed by' the judge as referred to in section 619 means the time of extension fixed by the judge in vacation, for neither of the sections confers upon the judge authority in tenn time to fix any time of extension,-the authority, in term time, being expressly conferred on the court while express authority is given in the same section to the judge to be exercised in vacation, to extend the time fixed by the court. Under the code, then the time fixed by the court or by agreement of the parties in term time may be extended by agreement of the parties o-r by the judge in vacation. And if the parties in vacation extend the time previously given by the court o-r the parties, this time may be further extended by the judge in vacation, likewise an extension made by the judge in vacation may be extended by the agreement of the parties or furthr extension may be given by the judge.

Thus it seems-to follow that under the law applicable to hills of exceptions in the circuit court the presiding judge as such has no power in term time to extend the time for signing a bill of exceptions, but the only authority he has is to be exercised in vacation with respect of extending the time already fixed either by the court, by agreement of parties or by himself as judge in vacation. It is clear under the practice act referred to that the time fixed by it for signing bills of exception may in term time be extended by agreement in writing of the parties and the time fixed by such agreement, under the act, construed in connection with the general statutes, may be extended by agreement in writing by the parties, or the time fixed by order of the presiding judge made in vacation. And it is my view that the order of the presiding judge referred to in section 19 of the practice act does not relate to any order to be made in term time, but to orders which may be properly made under the general statutes by the presiding judge in vacation, extending the time of signing bills of exceptions. Further, that under said section, the court has no power to grant an extension of the time within which a bill of exceptions may be signed. It must be signed within the time specified in the statute or within the time fixed by agreement of the parties. ■ The time fixed by the agreement of the parties as has been stated may be extended either by agreement of the parties, or by the presiding judg in vacation, likewise the time of extension so made by the presiding judge may be extended by the agreement of the parties and the time of signing the bill if covered by either of the categories will be valid.

Counsel for the appellant insists that the paper filed purporting to extend the time for signing the bill of exceptions for all practical purposes may be construed as an agreement of counsel within the meaning of section 618 of the code of 1896. If this contention of counsel could be sustained and the' paper held to be an agreement of the parties to extend the time for signing the bill, it would not avail the appellant anything, for the reason, that the bill of exceptions was signed after the next succeeding term of the court to the one at which the trial was had, was begun. Therefore, signed in violation of rule 30 of practice pertaining to circuit and inferior courts.—Cooley v. U. S. Savings & Loan Association, 132 Ala. 590, 31 South. 521; B'ham Ry. & Electric Co. v. James, 138 Ala. 594, 36 South. 464; Abercrombie & Williams v. Vandiver, 140 Ala. 288, 37 South. 296. The foregoing views with respect to the motion to strike the bill of exceptions are those of the writer. The other members of the court are of the opinion, and it must he accordingly held, that the bill of exceptions is valid, and that the motion to strike is without merit.

The remaining assignments of erior relate to exceptions 'reserved, to portions of the oral charge of the court and charges refused to the defendant. Issues were made up with respect to counts 1, 2, 4, 5, and 11 of the complaint, to which were filed the plea of the general issue and special pleas 11, 12, 13, 14, 15, 16, and 17, on which issue was joined. Issue was also joined on special replications 2 and 4 filed to plea 11. This plea presented the statute of nonclaim as a defense. And the special replications 2 and 4 allege a presentation of the claim by filing a• statement of the claim in the office of -the judge of probate. Counts 4, 5, and 11 weie charged out as the request of the defendant.

It is insisted that the general affirmative charge requested by the defendant should have been given. This insistence is rested upon two grounds, first, it is contended that there is no evidence that tends to show that Etter, the superintendent of the brick works, knew that plaintiff’s intestate was inexperienced. It is distinctly averred in the first and second counts of the complaint that Etter, the superintendent, “knew that plaintiff’s intestate was an inexperienced boy in and about said business.” This it not an incidental averment, but is made material by the pleader, therefore should be proved to the reasonable satisfaction of the jury. But it is not necessary that the facts should be proved by direct or positive evidence, but like every other material allegation it may be proved by circumstantial evidence. And unless in all the evidence there is absence of room for an inference tO' be drawn of the existence of the fact averred it cannot be taken away from the jury, but must be submitted under appropriate instructions for their determination.—Ala. Steel & Wire Co. v. Wrenn, 136 Ala., bottom of page 493, 34 South. 970; Gainer v. Ala. Midland R. R. Go., 108 Ala. 335, 18 South. 827. Upon clue consideration of the evidence in this respect we are of the oj) inion the affirmative' charge Avas properly refused.

Next, it is insisted that plea 11 put in issue the statute of nonclaim, that the proof Avas insufficient to show a presentation of the claim and that, therefore, the affirmative charge should have been given. We think it ■ cannot be gainsaid, when a defendant in a suit dies pen-dente lite, and the suit is revived against the deceased’s personal representative, it ds not required that the claim upon which the suit is based should be presented to.the administrator or filed in the probate court. In other words, the statute of nonclaim is inapplicable to such claims.—Floyd v. Clayton, 67 Ala. 265. This being true, plea 11 presented a wholly immaterial issue. Nevertheless, it was recognized by the plaintiff and if the plea ivas proved the defendant was entitled to the charge notwithstanding- the immateriality of the plea. But the appellant (defendant) says and contends, that when the plea of nonclaim is filed the burden of proof is on the plaintiff to prove presentation of the claim. And in cases where the plea presents a material issue it cannot be doubted such is the law.—Mitchell v. Lea, 57 Ala. 46. We think this rule with reference tO' the burden of proof is not applicable in cases where the issue presented is an immaterial one, and that to entitle defendant to the affirmative charge on that line of decisions which hold that proof of a plea presenting an immaterial issue entitles a defendant to the -affirmative charge, the evidence in the case should show-Avithout conflict the truth of the facts averred in the plea. So, if there is no evidence tending to support plea 11 or to controvert its allegations, the defendant Avas not entitled to the affirmative charge on this insistence.

The proof tended to show plaintiff’s intestate was a boy betAveen 13 and 14 years old; it tended to show his size and the character of the Avork he Avas put to do and place where the work Avas. It also tended to show that he had Avorked at the brickyard only a short time and that the work to which he Avas put by the super ini endent and which he Avas doing Avhen he received his injuries Avas not his “regular job,” and that it Avas dangerous work. We think all these matters Avere matters AA-hic-h the jury might properly consider in determining whether or not the boy was inexperienced Avitli respect to the particular Avork assigned him. And while the oral change of the court with respect of these matters may be argumentative in form, yet, the exception reserved to it cannot avail to reverse the-case. The court further charged the jury that “There is another averment which plaintiff must prove; and that is, that this work was necessarily dangerous, which means that it would be necessarily dangerous in spite of proper warning and instruction. If yon are reasonably satisfied from all this evidence, that this work which the boy was put to do was necessarily dangerous in that sense; that is, that it was dangerous to a boy of the experience, age and capacity that this boy was, that it was necessarily dangerous, however1 prudent and careful the instructions and warnings had been given, then the master had no right to put him at that kind of work and would be liable in case of his death.” “The law recognizes the right of a master to employ an infant in a hazardous occupation on condition that he shall furnish such infant with such information relative to the perils of his situation as will enable him to comprehend the dangers and understand how to avoid them. But it is an actionable wrong for a master to expose in a hazardous employment one whom he knows to be lacking in capacity to understand and appreciate the dangers surrounding him, however much he may have been instructed. An contrary rule of law would be egregiously inhuman.”

But, “a' minor, like an adult,. assumes the obvious risk of injury from the condition of the business in which he engages, and those are obvious risks which a. person of plaintiff’s intestate’s apparent age, intelligence, and capacity would discover and appreciate by the exercise of ordinary care.”—Dresser’s Employers’ Liability, § 96. Again, Mr. Dresser says: “By accepting the employment, a minor, equally with an adult, assumes the risk of injury, not only from the negligence of fellow servants and dangers incidental to the business, but also from the existing condition of affairs which he is competent to appreciate, and the danger of which he may avoid”—Dresser’s Employers’ Liability, § 96; Ala. Mineral R. Co. v. Marcus, 115 Ala. 389, 22 South. 135.

The evidence in the case showed that the plaintiff’s intestate was a bright, smart boy, of good intelligence, well grown for one of his age. There is also evidence tending to shew that the superintendent, Etter, instructed and warned the boy of the dangers connected with the work; and there is also evidence'in the record which tends to show that the danger was open and obvious. It was also shown that Etter called the boy’s attention specially to the particular danger of being caught between the belt and the post — the place where he was caught and killed. To say that putting a boy to work that is dangerous renders the master absolutely liable for the boy’s injury would be to deprive boys though smart, intelligent, and capable of appreciating the danger and of avoiding it, of the privilege of being employed in any dangerous work, for if this is the law no prudent master would give a minor employment about moving machinery Avliich we-judicially know is dangerous. It would also destroy in large measure the doctrine of assumption of risk which is so firmly en-grafted in the law of master' and servant as declared in our decisions. “Warnings to a servant take nothing from the inherent danger of the work; they merely enable him to avoid it.” The charge is not stated as an abstract proposition, but as being applicable to the facts of the case. In the light of the evidence and the propositions of law above adverted to, we must hold that the court committed reversible error in that portion of the oral charge under consideration.

Charge 2, refused to the defendant, should have been given. The complaint in both counts avers that the work was necessarily dangerous. It. is a material averment, and without proof of it to the reasonable satisfaction of the jury the plaintiff should not recover.

Charge 3 was properly refused. It asserts no proposition of law. Charge 4 is not assigned as error.

Charge 5 was properly refused. The bill of exceptions shows that it was requested merely for the purpose of answering an argument of opposing counsel.—Mitchell’s case, 129 Ala. 25, 30 South. 348. Moreover, given charge 17 seems to cover it.

Charge 6 was properly refused. It ignores the insistence of plaintiff and the evidence tending to support it, that superintendent Etter, ordered the boy to do the work he was doing at the time he was killed.

Charge 7 is not assigned as error.

Charge 8 should have been given, one of the material averments of the complaint is that the boy, George W. Mosley, was inexperienced in the work lie was set to do.

Charge 9, besides possessing other vices, is argumentative, and was properly refused.

Charge 10 was properly refused. By plea 16 the defense is made that there was a safe way to do the work the boy was set to do, and that his injury was caused by his negligent failure to resort to that way. But the plea does not aver that there was a “least dangerous way,” nor can it be said under all circumstances, that a servant who does not resort to the “least dangerous” way is guilty of negligence.

Charge 11, construed in connection with, special plea 14, and in the light of the evidence, should have been given.

Charge 12 failed to hypothesize that the act of Mosley, set forth in the charge, proximately contributed to his injury.

For the errors pointed out the judgment is reversed, and the cause remanded.

Reversed and remanded.