Alabama Steel & Wire Co. v. Griffin , 149 Ala. 423 ( 1907 )

ANDERSON, J. —

In the opening argument counsel for the plaintiff stated to the court and jury that plaintiff did not claim a recovery in the case on any count of the complaint except the fifth, sixth, ninth, and eleventh; and the court, in the oral charge to the jury, limited plaintiff’s right to recovery upon these counts and these alone. This was in effect an amendment of the complaint by striking out all the other counts, and, if there was any error apon the pleading in reference to-said abandoned counts, it was error without injury, and we will only consider the rulings on the pleadings which apply to counts 5, 6, 9 and 11. — Sou Ry. Co. v. Bunt 131 Ala. 591, 32 South. 507; Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440. These views are not- in conflict with what was held-in the case of A. G. S. R. R. v. Burgess, 114 Ala. 587, 22 South. 169. There it was held that a -withdrawal of the counts should appear of record, and not left only to be shown by bill of exceptions, and that said counts and the rulings thereon are legally before the court for review. They may be legally before the court for review, but, where it is shown affirmatively by the bill of exceptions that these counts were abandoned by plaintiff and charged out by the trial' court, although they inay be before us, we axe fully warranted by-the force'of reason and' authority in holding that any erroneous -'rulings relating to said counts, was error without injury.

The counts upon which the case was tried (5, 6, 9, and 11) Were • evidently intended to come within' the purview - of subdivision 5 of the- employer’s liability act (section 1749, Code 1896), which reads' as'' follows: “When such injury is'caused by' reason of the negligence of any person in’ the service or employament of the master or employer, who has' charge or control of any signal, points, locomotive, engine, switch, car or train upon a railway or of any part of the track of a railway.” Mr. Dresser, 'in his excellent work -on Employer’s Liability Act (section 73, p. 322), says: “The employer’s liability -acts of England, Alabama, Massachusetts, Colorado, and Indiana have ‘likewise favored the employes ’-of 'railroad^ above those engaged [in other occupations by inserting a clause designed exclusively for their benefit. The purpose of this enactment is more effectually to protect employes of railroads from the peculiar dangers of that business. It applies only to railroad employes, and whether or' hot a case comes within its terms depends, first, upon the question whether it is an injury received' in operating a railroad, a.s that' word-was understood by the 'frariiers of 'the act” This court has held' that subdivision 5 relates only to engines and cars on a railway.' — Whatley, Adm’r v. Zenida Coal Co., 122 Ala. 118, 26 South. 124. For whose benefit was this subdivision enacted? This question has never before been answered'by this court, 'but has been settled in other states, and by the Supreme Court of the United States, in passing upon statutes hot identical with, but enacted for the same practical purpose as, ours. It was 'there held that this law "was enacted for the protection of those engaged in the, hazardous character of business of operating a railroad. — No. R. R. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Mo. Pa. R. R. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463; Barbier v. Connolly, 113 U. S. 27, 5. Sup. Ct. 357, 28 L. Ed. 923. The Supreme Court- of Iowa, in the case'of Foley v. Chicago R. I. & P. R. R., 64 Iowa, 644, 21 N. W. 124, says: “The manifest purpose of' the statute .was'to''give its benefits to employes engaged in the hazardous business' of operating railroads. When tliiis limited, it is constitutional.' When extended further, it- bécomes unconstitutional.” See; also, Ind. Union R. R. Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943. 54 L. R. A. 787; Deppe v. Chicago R. R., 36 Iowa, 52; Lavallee v. St. Paul R. R., 40 Minn. 249, 41 N. W. 974; Nichols v. Walter, 37 Minn. 264, 33 N. W. 800.

Mr. Reno, in his 'work on Employer’s Liability'Act (section 69), say's: “As applied to' railroad companies, the defense of fellow service has been much further, restricted by the employer’s liability áets than as applied to other employers.' As we have seen, other employers are iii'áde liable for the negligence of their suprintend'ents. Railroad companies are not only'made liable, by the Massachusetts' act for a superintendent’s negligence,' but.also for the ‘negligence of any person in the 'service of the employer’ ivlio lias the charge or control of' any' signal, switch', locomotive engine, ór train upon a railroad.-’ '"The English-and Colorado' statutes are to the saíne effect, though the English act use's the word ‘points’ instead of ‘switch.’ The Alabama act goes' still' further in this direction, and makes a railroad company liable fói? ‘the negligence Of any person in the .service'of the master or employer' wlro lias charge or control of any signal, points, locomotive engine; switch, car; or train' upon a railway, or of any. phrt of the’ track of á raihva!y.” While it is to be Observed that the Alabama act goes further than any other, and' especiálly further than those heretofore construed, we cannot for a moment conceive the idea that it was intended to embrace any employes except those employed in and about a railroad. Ex vi termini, in order for the plaintiff to recover under said subdivision, the pleading and proof must show that at the time he-was injured he was employed in and about the railroad. It is not sufficient that he was employed at a plant by the same master, who also owned and controlled a railroad, which may be operated in furtherance of the business of the plant. His duties must be in and about the railroad. Counts 5 and 6, while averring that defendant owned and operated a plant, also averred that it was operating a railroad, and that the intestate was killed by cars on the track on defendant’s railway “while in discharge of his duties as such employe, engaged in loading some cars for the defendant, which had been placed or were standing upon a switch, spur track,” etc., and sufficiently bring the parties within the terms of subdivision 5.

Counsel for appellant contend, in brief, that the fifth count is bad because it avers the duties of Mitchell in the alternative, and that it falls within the influence of the case of H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, 10 South. 274. Whether it does or not we need not •determine, as /the question not presented (by 'any grounds of the demurrer to the complaint.

Counts 9 and 11 aver that the defendant was operating a plant; “that while the intestate was in the service and employment of the defendant, and engaged in and about the business of the defendant at or near said plant, * * * he was run upon or against. * * There is no averment in either of said counts 9 and. 11 that would even indicate that the intestate was employed in or-about the railway, or that he was discharging any duty in connection with a railway. He may have been working in or about the plant, and yet may have been in no way connected with the railway at the time he was killed, so as to bring him within the influence of subdivision 5 of the statute. The trial- court erred in not sustaining the demurrers to counts 9 and 11. The case- of Ala. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 South. 862, cannot save these- counts. - The court after some criticism, upheld the counts in Said case; which are more definite than the two now under consideration. • There the only business engaged' in by the defendant, as was' averred, was- operating a railroad-, and that the ■plaintiff was a.t the time an employe of- the defendant. Here we-have an averment that the defendant was operating a plant, and that the-intestate was employed and engaged-in and about said business at or near-said -plant. What business?- There certainly is no averment 'that- lie was employed in or about a railroad, . -

There was no merit-in the objection to the-letters': of administration, because the-deceased-was called “G.- L'. Cahill,” instead of “C. Cahill.” The insertion .'of the middle -letter- makes no difference, and it could fie disregarded. — Edmundson v. State, 17 Ala. 179, 52 Am. Dec. 169; 21 Am. & Eng. Ency. of Law, p. 307.

Evidence as to whether or. not the-engine had a-light ■on it -was not material’to- the ' issues-• involved in .the counts submitted to the jury; but whether relevant under the counts that were, subsequently -charged out we -need-not decide a.s the case must be reversed on other questions, ' • ■ <

The defendant had a right to' show- that plaintiff’s intestate was not a man of industry and thrift — that'he ’•was an inebriate; a tramp,! or a-lazy and indolent man— as affecting his -habits erf industry and -earning capacity. All-of the other exceptions to the evidence relate to the measure of damages in cases, of this character; which has fieén so repeatedly established by this court-that' we feel -that a • mere reference -to some -of- the authorities will suffice. — Ala. Min. R. R. Co. v. Jones, 114 Ala. 519, 21 South. 507, 62 Am. St. Rep. 121; James v. R. & D. R. R. Co., 92 Ala. 231, 9 South. 335; L. & N. R. R. Co. Jones, 130 Ala. 456, 30 South 586. We can discover nothing, in the-evidence objected to violative-of the rule, or-that should receive--any- special notice by us, except, perhaps, to determine-whether or-not-the plaintiff was '■■Confined- in his proof-to-the. probable earnings-of. intes-tate-in the trade or calling in. which he -was engaged, and as to what his services were worth in Alabama., and at the time of his death. We do not think the plaintiff would be. prohibited from showing that, the intestate was skilled in trades other than the one in .which he was engaged at the time of his death, or of showing what he could earn in Alabama, or elsewhere, at such other trade or trades, unless, he had. permanently abandoned. such other trades or callings, or had become incapacitated from following such’trades, previous to his death. — Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 South. 733; Rayburn v. Central Iowa R. R. Co., 74 Iowa, 643, 35 N. W. 606, 38 N. W. 520; Grimmelman v. Union Pac. Co., 101 Iowa, 74, 70 N. W. 90.

We find an exception . to a, certain . portion of the court’s oral charge, and Avhich, as set forth, contains about 300 AAmrds,. and many sentences, .covering nearly an entire page-of the transcript. There is nothing in the exception Avhich attempts to- point out the defective portions,, if. any exist, nor in the assignment of error or brief of counsel., The exception cannot avail the appellant, unless all that portion of the court’s charge excepted to Avas bad. • Such is not the case, at most, if not all, of it, is correct — Simpson v. State, 111 Ala. 6, 20 South. 572.

Charges- 1 and,2, requested, by the defendant, were properly refused, and. are fully discussed in what we said as to evidence rélating to the measure of damages.

Charge 3, requested by .the.defendant,, was properly refused. If not otherwise bad, it is. predicated upon a defect which was not .charged in either of the counts that went to the jury. ■. ■ " ■. • .. ..

- Charge á.Avas properly refused. If not otherwise, bad, it Avas misleading. . ,. . . ■■

■ Charges 6 and 7, .requested- by the defendant, Avere properly refused. We do not understand, that the -life expectancy,of the.parents-.of .the intestate has anything to. do-with .the measure of.damages.

. Charge 11, requested by the defendant,, was property refused -Reiter-Connally Cq.-v. Hamlin,. 144 Ala. 192, 40 South. 280.

Charge 17 need not he discussed by us, as it relates to count 11, to which we hold the demurrer should have been sustained.

Charge 18 was properly refused. There was a count charging the negligence to Walter Mitchell, and, if he left the switch open- the plaintiff could recover, whether J. N. Mitchell or Zimri Smith left the switch open, or knew who did leave it open.

Charge 23, requested, by the defendant, should have been given.’

Charge 24, requested by the defendant, was properly lAf^sed, ■ None of. the counts - subn^itted.. to- the jury predicated the negligence, complained- of upon any signal given- by J. N. Mitchell to Smith..

Charge 27, requested by the defendant, was properly refused. ' ' ’' ’ '

Charges 31 and 32, requested by the defendant, were properly’ refused as there was evidence in support of counts 5 and 6.

Charge ,35, requested by defendant,, need not be considered, .as we hold that the demurrer should have been sustained to the.ninth count.

Charge -36, requested by the defendant, should have been given. — McClellan v. State, 117 Ala. 140, 23 South. 653.

Appellee’s counsel insist that these charges come within’the1 influence of ’ the rule laid down in Verberg v. State, 137 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17, and Sou. Ry. Co. v. Douglass, 144 Ala. 351, 39 South. 268. It is true the bill'.of exceptions, does. not recite that they were separately asked; but each, charge shows that it was. separately .considered, , and marked . “Refused.,’’ by the court.

The judgment-of the city court is reversed, and the cause is remanded.-’ ■ ■ - ' ¡

Reversed and

Tyson, C. J., and Dowdell and Simpson, JJ., concur.