Alabama Consolidated C. & I. Co. v. Heald , 171 Ala. 263 ( 1911 )

MAYFIELD, J.

This is the third appeal in this case. A statement of the. facts, and some of the questions of law involved on this appeal, may be found in the reports of the former appeals. See 154 Ala. 580, 45 South. 686; 168 Ala. 626, 53 South. 162.

The case was finally tried on two counts, 3 and 5, and at the conclusion of the trial count A was added. Each count declared under the third subdivision of the employer’s liability act (Code 1907, § 8910) Counts 3 and 5 are almost identical, and count A differs from those only in alleging that the noxious gases were in pipes, and not liberated in the mine, as was alleged in counts 3 and 5. To each of these counts defendant interposed demurrers, which were overruled by the court, which rulings are here urged as error’. The ground insisted upon is that each count attempted to join therein two causes of action, one under subdivision 3, and the other under subdivision 1 of the employer’s liability act, and that the latter cause of action was insufficiently stated, and, for that reason, that each count was bad. We do not find that any one of the counts was subject to this defect. As we construe the counts, they each only attempt to state, and did state, a cause of action under the third subdivision. While the facts of the case may have warranted a count under the first subdivision, or upon the common-law liability of the master to furnish the servant a safe place in which to work, there was no attempt to' state either of such causes of action in any one of the three counts complained of. They each follow forms which have been repeatedly approved as sufficient to state a cause of action under the third subdivision. Hence there was no error in overruling the demurrer to each of these counts.

The negligence relied upon in each count was that of one Dunn in ordering the intestate to go into the mine when it or the pipes therein were filled with the noxious or suffocating gases, and this was the chiefly disputed issue on the trial. There is no dispute that Dunn had the authority to give the order which he is alleged to have given, and none that it was the duty of intestate to obey such order; nor is there any dispute that intestate went into the mine and was killed in consequence of the noxious gases therein, or which escaped from the pipes after he entered and while he was attempting to repair a pump — the purpose of his entering the mine. The plaintiff's evidence tended to shoAV that Dunn did give the alleged order, and that he stated to intestate, at the time, that it was safe for him to go into the mine; while the evidence of the defendant was to the contrary, tending to prove that intestate Avent into the mine voluntarily and at his OAvn option or suggestion, and that Dunn did not knoAV, or have any reason to suspect, the dangerous condition of the mine at the time intestate entered it.

The undisputed facts seem to sIioav that these noxious gases Aver.e generated in an air receive! Avhich Avas used in connection Avith the air compressor, compressed air being used as the motive poAver for operating the mine. It seems that noxious or suffocating gases Avere thus generated in consequence of the receiver’s becoming too hot, and, Avhen thus generated, are conveyed into the mines by means of pipes, and may be released at various points in the mines by cocks or other such devices. The evidence is undisputed that the receiwer and other machinery connected with the compressor were very hot on this occasion, that some part of the machinery was out of order, which prevented the compressor and receiver from performing their functions, and resulted in heating the machinery to a very high degree, thus generating the gases which suffocated intestate Avliile in the mine to repair the pump.

There is no dispute that the receiver and other parts of the machinery were very hot on this occasion, and that the effect of such excessive heating was to produce the gases complained of; but the evidence is in conflict as to whether or not it was reasonable to suppose that enough gas could he thus generated to render the mine unsafe. This was one of the disputed issues on the trial, and one which the jury must have found in favor of the plaintiff, in order to support a verdict in his favor. The theory and contention of the defendant as to this matter was that the death of intestate was an inevitable accident — one that reasonable prudence and forethought could not have provided against; and consequently that the defendant or its agent Dunn, who is alleged to have given the negligent order complained of, was not guilty of any actionable negligence, because neither the danger nor the result could reasonably have been anticipated or provided against. There was, however*, evidence sufficient to make this a question for the jury, and they evidently found against .the contention of the defendant.

It is next insisted that the court erred in admitting the evidence on a former trial of the absent witness, Ejnslen. We find no error in the rulings of the trial court in this respect. The proper predicate sufficient in all respects, as has been held by this court, was laid for the introduction of such evidence. It is chiefly insisted that the evidence was not admissible because it was given on a former trial of the case, when the suit was by the original administratoi*, and that the suit is now being prosecuted by the administrator de bonis non. There is no doubt that there is a difference between the duties of an administrator in chief and those of one de bonis non. The actions brought by them may be different. Often there is no privity, between the administration in chief and that de bonis non, and a judgment against the one representative is not binding on the other; but those rules of law do not prevent the testimony given in an action brought by the one from being admissible on a. subsequent trial of the same action and for the same cause of action as that involved in the first trial—Woodstock Co. v. Kline, 149 Ala. 399, 43 South. 362.

It was ruled on the former trial of this case that the evidence of the witness Enslen that Dunn told the intestate that it was safe to go into the mine was competent, hence there was no error as to the ruling on this evidence. 154 Ala. 580, 45 South. 686; 168 Ala. 626, 53 South. 162.

The trial court properly sustained the plaintiff’s objection to the question.by the defendant to the witness, “What did the job pay?” It is’ not made to appear that the answer to this question would be relevant. It ivas not sufficiently connected in time, nor as to the earnings of the intestate, to make this question admissible upon the issue of the amount of damages recoverable in’ this action — the only purpose for which we can see that' it could be relevant. What a given job would pay some one other than the deceased or at a time or for a work different from that which the deceased performed, standing alone, was not admissible, but would tend rather to confuse than to enlighten the jury on the question of the amount of damages, if any, to which plaintiff • was entitled. Moreover, this witness was shown not to know what wages deceased received, nor whether he received a fixed salary. So far as appears from this record, the question of a job of another person different from the work in which the deceased was engaged was not relevant or admissible in determining the amount of salary which deceased received, or would have received had he not met his death as alleged; that is, it did not show, or tend to show, the earning capacity of the deceased. It it not made to appear from this record that the question as to what a helper receives as compensation would be competent, or would in any manner aid the jury in determining the earning capacity of the deceased. This evidence was probably offered on the theory that deceased paid the helper out of his salary, and that, therefore, it should be deducted from the amount of the salary of the superintendent of the water company, which office the deceased at one time filled; but it Avas not shown that the deceased did pay the helper out of his salary. Had the evidence been offered for this purpose, the defendant should have so informed the court, and have offered it for this, purpose only.

The trial court properly sustained defendant’s objection to the question. “What Avas the salary?” The inquiry Avas not confined to any particular time or occasion, and, moreover, Avitness had previously testified that he did not knoAV whether deceased received a fixed salary or not.

The nineteenth assignment of error cannot be considered, for the reason that the record fails to shoAV the question upon Avliich the objection and exception are based.

There Avas no error in declining to exclude the testimony of the Avitness Vinson on defendant’s motion. No objections Avere interposed, or exceptions reserved, to the evidence which Avas sought to be excluded, and a part of it certainly A\as competent and admissible. The court Avas not required to separate the good from the bad.

Charge B given at the request of the plaintiff, appears to be copied from language used by this court in a former opinion rendered in this case; and the language in that opinion seems to have been quoted from another opinion of this court (Smith’s case, 150 Ala. 359, 43 South. 561), and in that case from the text of Mr. Bailey’s work on Personal Injuries, § 899. The questions of law involved in this charge are we think correct, and in it we observe no tendency to. mislead the jury. Consequently, the trial court cannot be put in error for giving such charge.

If counsel for defendant conceived that such charge might have misleading tendencies, they should have sought to avoid it by having the court give an explanatory charge, such as would cure the defect.

Appellate courts will place that construction upon charges of trial courts which will sustain, rather than condemn, if the charge given is susceptible of such construction.

The trial court properly declined to instruct the jury as requested by defendant’s written charge No. 76. It requested the court to instruct the jury that there was no evidence of a given fact. While trial courts may, and in some cases should, give such instructions, it has been repeatedly held by this court that the lower court will not be reversed for refusing such requested charges; and we think that the charge in question should not be made an exception to this established rule. There was in this case evidence of the probable duration of deceased^ life and of his earning capacity, sufficient to warrant the submission of these questions to the jury, and to support the findings of the jury thereon. Consequently there was no error in refusing charges to the defendant seeking to take these questions from the jury.

As.we have before stated, there was no attempt in the complaint to declare under subdivision 1 of the employers’ liability act. Therefore there was no necessity to prove a cause of action thereunder, and the court properly declined to instruct the jury that such proof was necessary to support, a verdict.

There was ample evidence in this case,, if true, to support the verdict found and returned by the jury. We cannot know or say from an examination of this record that the verdict was excessive, as some of the evidence tended to support a verdict for a much larger amount. This record shows that this question was exclusively one for the jury, and we cannot say that their finding was induced by improper motives or by other matters outside of the evidence, nor that the trial court exceeded or abused its discretion in denying a. new trial upon the ground that the verdict was excessive.

Finding no error, the judgment of the circuit court is affirmed.

Affirmed.

Simpson, McClellan, and Somerville, JJ., concur-.