Louisville & Nashville R. R. v. Lile , 154 Ala. 556 ( 1908 )

TYSON, C. J.

It is undoubtedly true that it is necessary, in order to give this court jurisdiction, that the transcript upon appeal should show the organization of the trial court. In the present record it is made to appear that this canse was tried and judgment rendered at the regular term of the circuit court of Morgan county, begun and held at the courthouse thereof on the day fixed by the statute for holding the same, and that the judge who presided was the judge of that circuit. The point is made that it does not appear that the clerk and sheriff were present at the organization. This is wholly unimportant. It will be presumed, if their presence should be deemed necessary, that they were present, in the absence of affirmative showing to the contrary.

It is next insisted in brief of counsel that the appeal should not be entertained for the reason that the appeal bond, in describing the judgment rendered and from which the appeal is prosecuted, shows it to have been rendered on the 10th day of May, 1906, whereas the judgment was in fact rendered on the 8th day of May, 1906. In detemining whether this misdescription is fatal, thereby rendering the bond inefficacious, the correct rule seems to us to be that if, from other elements of description of the judgment contained in the bond, it can be ascertained with reasonable certainty that no other judgment than the one shown by the record ivas appealed from, the bond is not invalid, but is binding. In other words, the bond, on account of the misstatement of the date of the judgment, is not void, where the judgment may be identified with reasonable certainty from the remaining description of it in the bond. — 1 Ency. PL & Pr. 981, 982, and note; 2 Cyc. pp. 882, 883. The bond under consideration, it seems to us, possesses these elements of description, which plainly show the misdescription as to date to be a mere clerical error, and that it was given as a supersedeas of the only judgment rendered against the defendant in favor of the plaintiff, and is perfectly valid. But, if this be not true, in the absence of any appeal bond, the jurisdiction of this court to review the judgment is clear and beyond controversy; and the failure of the appealing party to give such a bond is a mere irregularity, which the appellee may waive.— Thompson v. Lee, 28 Ala. 453. And this he does when' he appears and interposes no objection to the irregularity upon the submission of the cause for decision upon its merits, as was done in this case.- — 2 Cyc. 882, 883; Elliott’s App. Pro. § 684.

This brings us to a consideration of the merits of the appeal. The first count of the complaint seeks a recovery by plaintiff for his injuries on account of the alleged employment by defendant of an incompetent servant, to whose conduct in the performance of the service committed to him the injuries inflicted are ascribed. The name of that servant was Tom Trotter, who, it is alleged, “was about IT years of age, possessing only one eye.” It is further alleged that “Trotter was unskilled in the work, and because of being blind in one eye. was not a fit or proper person to do said work, all of which was well known to defendant, and the said Trotter being incompetent as aforesaid to the knowledge of defendant,” etc. The objection taken to the count by demurrer was this: “It is not alleged in said count that the lack of one eye in said Trotter imperiled his efficiency.” It is plain that the objection was not well taken.

The plaintiff’s abandonment of his right of recovery upon the second count, in the manner shown by the record, renders it unnecessary to determine the correctness of the ruling of the court upon the demurrer interposed to that count. — Southern Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507.

Count numbered 3 was drawn under subdivision 1 of section 1749 of the Code of 1896. The only objection urged against its sufficiency is that it does not aver the name of the defendant’s servant to whom was intrusted the duty of seeing that its ways, works, machinery, or piant were in proper condition. The objection was not well taken. — McNamara, v. Logan, 100 Ala. 187, 14 South. 175; Woodward Iron Co. v. Herndon, 114 Ala. 191, 21 South. 430; Northern Ala R. R. Co. v. Shea, 142 Ala. 119, 37 South. 796.

The fourth count is not framed, as seems to be thought by appellant’s counsel, under the statute (section 1749, Code 1896), but, is clearly predicated upon a common-law liability, towit, the furnishing by defendant of an unsafe machine, knowing it to be unfit, with which to do the work, and the employment of an incompetent servant, who was to assist, and did assist, in its operation, both combined causing plaintiff’s injuries. — Bridges v. T. C., I. & R. Co., 109 Ala. 287, 19 South. 495. The first objection urged against its sufficiency by demurrer, that the name of the person who improvised the adaptation of the machine to the work which was to be done is not alleged to be unknown to plaintiff, is directly in the teeth of the averment. If it be conceded that the count as originally framed (which, as copied in the transcript, is elliptical) was defective with respect to averring the authority of this unnamed person, because unknown, to act for defendant, this defect was cured by the subsequent amendment of the count . The other grounds of demurrer proceed upon the theory that the count joins a cause of action under the statute and one at common-law. This, we have shown, is not true. They were, therefore, not well taken.

The assignment of demurrer to the fifth count does not raise the question argued in brief of appellant’s counsel. Indeed, the question raised by the demurrer is not insisted upon. However, the point made in brief is the count does not aver that the machine was unsafe. This assertion is clearly in the teeth of the averment. No one of these counts was subject to the objections taken to it, and the rulings of the court in this respect were free from error.

The testimony without dispute established that Mack Brown, who improvised the machine, so as to work it by a lever, instead of by air, for hoisting the iron or steel billets, did so as foreman of the servants who were to operate it, and that it was his duty to furnish the machine as so improvised by him, and, further, that he was authorized to employ, and did employ, Trotter and the other servants of defendant, who operated the machine on the occasion of plaintiff’s injuries, with authority to discharge any one or all of them. The committal to him by the defendant of the authorization to furnish the machine1 and to employ Trotter and his associate servants was the conferring upon him of the right to discharge a personal and nondelegable duty, and in the discharge of that duty he acted as the agent of the defendant and was its alter ego; and if he furnished an unsafe machine, and employed an incompetent servant, as alleged in several counts of the complaint, which the testimony tended to support, the defendant is liable at common law. And on the undisputed proven facts, stated above, Brown was not, as matter of law, a fellow servant of the plaintiff. — Tutwiler Coal Co. v. Farrington, 144 Ala. 157, 39 South. 898; Sloss-Sheffield Co. v. Holloway, 144 Ala. 280, 40 South. 211; A. G. S. R. Co. v. Vail, 142 Ala. 134, 38 South. 124. There was, therefore, no error in the giving of the written charge numbered 2, at plaintiff’s request.

The criticism of charge 8 given for plaintiff is clearly unfounded. It is urged against the correctness of this charge that it does not negative plaintiff’s knowledge of the fact that the machine was unsafe. Plaintiff’s knowledge of the condition of the machine was defensive matter, and was invoked as a defense in this case by special pleas The charge only authorized the jury to find for the plaintiff upon a belief of certain, facts, “provided defendant has not proven any of the pleas.” It is apparent that the criticism, as we have said, is wholly without foundation.

The criticism indulged against charge 9 is wholly inapplicable to it. Counsel must have had in mind written charge 10. But the criticism, if applied to the latter charge, can avail nothing. The most that can be said against it is that it is argumentative. The giving of it was not reversible error. — Bray v. Fly, 105 Ala. 553, 17 South. 180; Karr v. State, 106 Ala. 1, 17 South. 328; Baldwin v. State, 111 Ala. 11, 20 South. 528.

The use of the word “as,” instead of “at,” in charge 18, refused to defendant, without more, is a sufficient reason to sustain the action of the trial court. This may seem technical; but, as the trial court is without authority to change the verbiage of a written charge requested, and must give it in the exact language in which it is asked, he cannot be put in error for refusing, as was here done, a charge that is verbally inaccurate and unintelligible. — Hooper v. State, 106 Ala. 41, 17 South. 679; Thomas v. State, 124 Ala. 48, 57, 27 South. 315; Tutwiler Coal Co. v. Enslen, 129 Ala. 336, 346, 30 South. 600; Southern Coal Co. v. Swinney, 149 Ala. 405, 42 South. 809; McWhorter v. Bluthenthal et al., 136 Ala. 568, 33 South. 552, Am. St. Rep. 43.

We have considered every assignment insisted on, and And no reversible error in the record.

Affirmed.

Dowdell, Anderson, and McClliglan, JJ., concur.