Crimm Lumber Co. v. Walden , 210 Ala. 323 ( 1923 )

The action is for damages for personal injuries suffered by plaintiff while in the employment of defendants, appellants. Plaintiff was injured by the explosion of a boiler in use at the steam sawmill where he was employed. The case went to the jury on counts 4, 7, and 9 of the amended complaint, framed, respectively, (4) under subdivision 1 of the Employers' Liability Law, section 3910 of the Code, charging a defect in the boiler; (7) under the common law, charging that defendants employed an incompetent fellow servant, the fireman or engineer in charge of the boiler, whereby plaintiff received his injuries; and (9), under the common law, charging that defendants negligently used a boiler "which was out of order, unsafe, and unfit to be used." Pleas allowed were the general issue and payment of a sum accepted by plaintiff in full satisfaction of his claim. The sufficiency of these counts is well sustained by the authorities. Our judgment is also that the evidence warranted the submission of the issues made under each of them to the Jury, and, of consequence, that the general charge requested as against each of them was properly refused.

The demurrer to plea 3, in which defendants alleged that they had paid, and plaintiff had accepted in full satisfaction of his claim, a sum named in the plea, should have been overruled so far as the plea undertook to answer counts 4 and 7. As an answer to count 9 the plea was insufficient, because in that count it is alleged that plaintiff was a minor at the time of suit commenced. But not so as to counts 4 and 7. However, evidence on the issue tendered by this plea was taken, and the issue submitted to the jury for decision as an answer to the complaint; that is, without restricting its application to the case made by count 9, and our judgment is that, in these circumstances, the error shown should not be allowed to work a reversal — that the error was without injury.

Likewise, the plea of the statute of limitation of one year, substantially in Code form, was a good plea; but the evidence on both parts showed without conflict that plaintiff's action was not barred, and no harm resulted from the ruling by which the plea was held to be insufficient.

Plea 5 had several faults, but it is enough to say that, defects apart, it was tantamount to the general issue. The demurrer was proply sustained; but, had the ruling been otherwise, it would not have materially helped the defense.

The witness Partin was qualified by practical experience to answer the questions propounded to him concerning the condition of the boiler when he sold it to defendants about a year before it exploded. Ala. Consol. Coal Iron Co. v. Heald, 168 Ala. 626,643, 644, 53 So. 162. So, also, as to the witnesses Sprouse and Johnson. Of that part of the testimony of Sprouse to which exception was reserved it may be further said that no special or expert knowledge was necessary to render competent his statement that rust had eaten the end off of some of the boiler's flues, while as for Johnson we incline to construe his answer as a declination to answer, in which event, of course, no harm was done.

Plaintiff claimed nothing on account of liability for medical services, and therefore there was no error in sustaining his objection to defendants' question (assignment of error 16), which sought to elicit the fact that plaintiff had paid his physician nothing. That matter was not in issue between the parties. As for the rulings made the subject of assignments 17 and 18, whether or not on issues properly formed defendants should have had the benefit of the payments here inquired about, the fact was that these payments were subsequently shown without contradiction, and of the rulings assigned for error, defendants, appellants, have now no substantial cause of complaint.

Statements made by counsel to the court show that, by their question to plaintiff testifying as a witness in his own behalf (assignment of error 19), defendants sought to show that plaintiff was not acting within the line and scope of his employment at the time of his injury; but the facts which defendants stated they proposed to prove would not have taken plaintiff without the protection due him as an employee. Such facts, coupled with facts going to show that plaintiff's noncompliance with Smith's order caused the injury complained of, may have shown plaintiff's contributory negligence; but there was no plea raising that issue; hence there was no error in the ruling.

Assignments 20, 22, and 25 have in principle been disposed of by rulings heretofore stated.

There was no issue made in the pleadings to be elucidated by defendants' question to their witness Seay, viz.: "Had anybody said anything about it" — meaning the boiler — "being dangerous?" Besides, the question was entirely too indefinite — was not limited to anything said before the explosion or in the presence or hearing of plaintiff.

It may be doubted that assignment 23 is argued in the brief. There is hardly more than a restatement of it. But, however that may be, the occasion for plaintiff's leaving defendants' service months after his injury was irrelevant to any issue in the cause.

We hold that the question made the subject of assignment 24 was answered in substance, and as well as the witness knew.

No sufficient exceptions were reserved to the court's oral charge. The attempted exceptions should have pointed out to the court — not the reporter merely — the specific propositions of the charge to which defendants reserved their exceptions. This was not done.

It only remains to be said that there was no error in overruling defendants' motion for a new trial, based upon the propositions hereinbefore considered.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.