69 So. 4 | Ala. | 1915
Lead Opinion
This action, instituted by the appellee against appellant, was finally tried on issues tendered by the first count of the complaint. It was drawn to state a cause of action under the first subdivision of the Employer’s Liability Act (Code, § 3910). The means of injury was the falling of rock or slate upon him from the roof of defendant’s ore mine.
In addition to the general issue, the defendant interposed plea 2, which the report of the appeal will contain. This plea attributed the injury complained of to the alleged fact that plaintiff negligently exposed himself to the injury he received by going under loose rock or slate in the roof of a certain heading in the mine, of the dangers of which action he was aware or should have known had he observed ordinary care; The plaintiff’s demurrer to the plea was overruled.
(1) It is now insisted for appellant that there is no evidence in the record tending to sustain the material averment that at the time plaintiff was injured the relation of master and servant existed; but, to the contrary, it is asserted that the evidence undisputedly showed that the plaintiff was a “contractor.” — Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 South. 721; Hubbard v. Coffin & Leake, 191 Ala. 494, 67 South. 697. No suggestion of this nature appears to have
At the request of the plaintiff the court gave the following instruction to the jury: “I charge you that you cannot find plaintiff guilty of contributory negligence by reason of his remaining in the employment of defendant after knowledge of a defective roof, if you believe from the evidence that the roof was defective, unless it was his duty to remedy such defect.”
It is manifest that the effect of giving this instruction to the jury was to eliminate the substance of plea 2 from consideration by the jury, and to deny to defendant the benefit of the matter of the plea in bar of the recovery sought under the first count of the complaint, the plea 2 having been held not subject to the demurrer interposed.
(2) In the presently important particular Code, § 3910, reads: “Provided, that in no event shall it be contributory negligence or an assumption of risk on the part of the servant to remain in the employment of the master or employer after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect, or Avho commit
We have recently had occasion to consider this feature of the statute (section 3910) in the concrete cases of Burnwell Coal Co. v. Russ Setzer, 191 Ala. 398, 67 South. 604, and Standard Cement Co. v. Thompson, 191 Ala. 444, 67 South. 608. In the former case it was ruled, in substance, that the theory the trial court put into effect by its rulings, viz., that the 1907 addition to the statute effected to inhibit the defenses of assumption of risk and of contributory negligence in all circumstances except the two mentioned in the last sentence in the quoted feature of the statute, was erroneous, because of a misinterpretation of the effect of the 1907 addition to the statute. In the latter case it was ruled, in substance, that the 1907 addition to statue (section 3910), before quoted herein, did not operate to repeal or to qualify the preceding feature of the statute, viz., that forbidding a recovery where the employee knew of the defect or negligence, and failed within a reasonable time to give information thereof to the master or the superior, unless the master or superior knew of such defect or negligence. It is not to be supposed that the last-indicated feature-of the statute was left in it to no' purpose, which would be the result if the 1907 addition to the statute was interpreted as destroying the defenses of assumption of risk and of contributory negligence, except in the two cases mentioned in the last sentence of the addition quoted ante.
So, without assuming to interpret the present statute (section 3910) beyond the necessities of the concrete case presented, and drawing down to the present for complete statement of and giving effect to, the statute as it exists, in virtue of the mentioned addition in the Code of 1907, we can now state its whole effect in re
To “remain in the employment” signifies continuing in the service or work of the master in the zone of possible danger of injury to that servant, who then knows of the existence of the defect or negligence to which under the first subdivision of the act (section 3910), his injury is attributed in his pleading.
(3) In the light of these considerations it is manifest that plea 2 was subject to aptly grounded demur
(4) Exceptions and provisos are said to denote distinct conceptions and to have in orderly pleading distinct effects. — Fike v. Stratton, 174 Ala. 541, 558, 559, 56 South. 929. And, when it comes to asserting a right or a defense in pleading under statutes or contracts containing exceptions or provisos, it is essential that the distinction be noted and observed. They are gen
See, also, Sims’ Case, 135 Ala. 61, 33 South. 162; Bell’s Case, 104 Ala. 79, 15 South. 557. The last sentence in the added 1907 feature of section 3910 is, so far as that addition is concerned, an exception, not a proviso. The two circumstances therein defined, under which assumption of risk or contributory negligence are available to the master as defenses, are descriptive of the classes of servants who may be guilty of assumption of risk or of contributory negligence, and thus effects to define, so far as that addition to the statute does define, who may not be precluded of a recovery by reason of the assumption of the risk or by reason of contributory negligence. The exception, the “unless” sentence, in the addition to the statute, is hence an element of the “enacting clause,” and, in consequence, the affirmative obligation is on the pleader (the defendant), Avho would assert the defenses mentioned in the addition to the statute, to exclude the injured servant by positive averment from the stated exceptions in the statute. So, we repeat, plea 2 in this case was faulty, and should have been demurred to on the particular ground stated.
(5) It is clear that the given charge 2, quoted above, had the effect to eliminate any advantage to the defendant under the terms of its plea 2, a plea that was defective in the respects hereinbefore indicated. It is also clear that Avhen referred to the evidence, as must be done, the charge thus given for the plaintiff was with
It has been long, if not from the beginning, established in this jurisdiction that in actions at law parties may try their causes upon such issues as they choose; and the result, in actions at law, should, if free from error, be in accordance with the issues made by the pleadings. — Glass v. Meyer Co., 124 Ala. 332, 26 South. 890, among others. So, when issue is joined on either an immaterial or a defective plea, without first testing it by appropriate demurrer, the substance of such pleas constitutes the issues litigable; and, if there is evidence tending to support such pleas, the court will err if it withdraws from the jury’s consideration the issues made by such pleas. — Mudge v. Treat, 57 Ala. 1; Mobile Ry. Co. v. Watters, 135 Ala. 227, 230, 33 South. 42. It thus results that the sufficiency or materiality vel non-of a pleading cannot be tested by an instruction to the jury, though it would not be prejudicial error to eliminate from the jury’s consideration the issues tendered by a pleading if a material averment thereof was entirely without support in the evidence. Hence the trial court was in error in giving, at plaintiff’s request, the special instruction hereinbefore quoted, for the reason that it eliminated the issues made by the allegations of plea 2, upon which issue was taken, unless there was no evidence to support a material averment
The entire evidence has been carefully considered. It is clearly impossible to say that any one of the material averments of plea 2 are without support in the evidence. In consequence, it must be ruled that the court erred, under the issues made by the averments of plea 2, in giving the special charge quoted, and that this error was prejudicial to the appellant. . For that the judgment must be reversed.
(6) There is no merit in the second assignment of error. The instruction therein quoted will be shown in the report of the appeal. It dealt with the awarding of damages for pain and suffering, if the bases for such were found by the jury to have existed. There is no legal standard for the measurement of such damages. — W. U. Telegraph Co. v. Sneed, 115 Ala. 670, 676, 22 South. 474. The sound impartial discretion of the jury must be invoked in the ascertainment of damages on those accounts. If the charge possessed misleading-tendencies, the defendant should have requested explanatory instructions. — Randle v. B. R., L. & P. Co., 169 Ala. 314, 322, 53 South. 918. There were tendencies in the evidence to invite a finding that the unconsciousness mentioned in brief for appellant was in consequence of the injury plaintiff received in defendant’s mine.
(7) The requested instruction set out in the fourth assignment was refused without error. “Impractica
(8, 9) The subjects of assignments numbered 7 and’ 8 are plainly without merit. Assignment numbered 6, not being insisted upon in brief, was waived.
For the error indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Rehearing
ON REHEARING.
The reversal of the judgment of which the plaintiff makes complaint in his application for rehearing is based upon the action of the court in giving to the jury, at plaintiff’s request, special charge 2, whereby the effect wrought was to eliminate the matter of defense set up in plea 2, upon which issue was joined after plaintiff’s inaptly grounded demurrer was overruled. The chief contention of the applicant is that the special instruction mentioned did not have the effect to eliminate from the jury’s consideration the issues tendered by, and joined as upon, the averments of plea 2. Originally, it was not thought at all necessary to enter upon a detailed statement of the considerations inviting and unlerlying the ruling made in this connection, but out of deference to the earnest insistence of counsel in the application for rehearing we will now do so.
(10-12) The plea’s theory is that the plaintiff’s right to recover was barred by his contributory negligence. Such a plea is, of course, one of confession and avoidance of the cause of action to Avhich it is addressed.
(13) It is urged for the applicant for rehearing that the abstract meaning of the word “went,” as employed in the plea, and of the word “remaining,” as that word signifies in the statement of the doctrine Avith reference to which it is commonly used and as used in the before-quoted added (in 1907) provisions of the statute (Code, 3910), effect to oppose the pertinent idea expressed in the plea to the idea imported by the use of the term “remain” in the doctrine against the availability of which in defense the added provision of the mentioned statute concludes, and hence refutes the notion that the proposition of charge 2, given at plaintiff’s instance, which pronounced a sound legal result in accordance with the mentioned provision of the statute under the evidence in this record, was not in contradiction of the substance of the matter of defense asserted by plea 2; in short, that said charge 2 did' not conclude against defense asserted by plea. The adoption of that conclusion would, as we have already indicated, construe the plea Avithout any sort of reference to the stated averments of count 1, to which it is addressed, to say nothing of its own assertion that, when injured, the plaintiff was then engaged in the master’s service. If it were possible to vieAV the plea as only serving to affirm that plaintiff was negligent in going into a place of known peril, or in going into a place
(14, 15) It is further insisted that the benefit of the defense set up in plea 2 was not denied defendant because the following special instruction was given to the jury at defendant’s instance: “If you believe from the evidence that plaintiff had been warned by the mine foreman, Pitts, not to go under the rock which fell upon him, and that it was dangerous, and that, disregarding such warning, plaintiff went under said rock, and it fell upon him, he cannot recover in this case.”
There was no plea attempting to assert plaintiff’s contributory negligence as upon his disregard of warning given him, as the charge hypothesizes, by his superior, Foreman Pitts. In this jurisdiction contributory negligence must be specially pleaded. — 3 Labatt on Master & Servant (2d Ed.) § 1280, and notes; A.
(16) But, even if it should be assumed that charge 7 exactly expressed the defense set up by plea 2, the status would then have been that charge 2, given at plaintiff’s instance, conflicted Avith charge 7, given at defendant’s instance, and the jury was contradictorily advised — a result that is always condemned.
(17) ■ It is further insisted that rule 45 (175 Ala. xxi, 61 South, ix) should be applied to the end that a reversal of the judgment would be averted. Originally, the writer entertained that view; but fuller consideration led to the conclusion, according with that prevailing with the other judges, that the rule could not be given application to the status made by the pleading and stated in the foregoing opinions. The rule rests upon error committed, and expresses the doctrine that no judgment will be disturbed or reversal ordered “unless, in the opinion of the court-, * * * after an examination of the entire cause,” it appears “that the error complained of has probably injuriously affected sub
The application for rehearing must be denied.
Application denied.