This is аn appeal by appellant, plaintiff below, from a judgment of voluntary non-suit taken because the court overruled plaintiff’s demurrer to defendant’s plea seven, and is the third appeal in this case.
On the first аppeal, Black Diamond Coal Mining Co. v. Ellis,
The second appeal was taken when the plaintiff suffered a non-suit after the сourt below had sustained demurrers to each count of the complaint as amended. We reversed and remanded in Ellis v. Black Diamond Coal Mining Co.,
Count one of the complaint alleges thаt defendant operated a coal mine known as Blue Creek Mine from March 26, 1941, to July 16, 1945, and that plaintiff’s intestate worked in the mine during this period and was exposed to silica dust, and that due *578 to this exposure he contacted silicosis, anthracosis or pneumonoconiosis and died from this disease on February 16, 1949. The count further alleges that defendant negligently failed to provide her intestate with a safe place in which to wоrk. Count two adopts count one and further alleges that plaintiff’s intestate was not informed that he had silicosis until October, 1948, when he was examined by a physician. Count three adopts count two and alleges further that dеfendant knew that plaintiff’s intestate had silicosis before July 16, 1945, and had a duty to inform him of this fact, but fraudulently concealed it from him until the statute of limitations had run, thereby preventing plaintiff’s intestate from suing the defendant. The count further alleges that a physician in the employ of the defendant examined him and informed him that he was suffering from pulmonary tuberculosis, which was untrue, and which advice so misled him that he was lulled into inactivity until October 20, 1948.
The apрellee, defendant below, demurred to the complaint and to each of the counts, separately and severally, and the trial court sustained the demurrer. As noted, supra, plaintiff then took a non-suit and aрpealed and we held in Ellis v. Black Diamond Coal Mining Co., supra, that the defense that the one year statute of limitations had run against plaintiff’s intestate could not be raised by demurrer. Thereupon, defendant filed sevеn pleas and plaintiff demurred to all these pleas except pleas one and two which were pleas of the general issue. The court sustained plaintiff’s demurrer to pleas three, four, five and six, but overruled plaintiff’s demurrer to plea seven. Plaintiff again took a non-suit and now seeks a review of the adverse ruling on the demurrer to plea seven, which reads:
“For further answer to each count of the comрlaint, as amended, separately and severally, the defendant says that the plaintiff ought not to recover in this cause for that the plaintiff’s intestate was not exposed to dust or other noxious substances in or аbout said mine or mines of the defendant for a period of more than one year prior to the date of his death.”
Notwithstanding that it is not in Code form, this is a plea of the statute of limitations of one year found at Tit. 7, § 26, Cоde 1940; Ellis v. Black Diamond Coal Mining Co.,
Appellant’s primary contention is that the case of Woodward Iron Co. v. Craig,
Appellee says that it does not argue with the cause of action, but that plea seven sets up a defense to the cause of action and that we have held that a defendant may avail himself of the defense of the statute of limitations if that defense were available against the decedent had he brought the action.
Appellant has cited to us the cases of Smith v. Lilley,
The Craig case has since been followed in Black Diamond Coаl Mining Co. v. Ellis, supra, and Moore v. Stephens,
“There is an analogy between that case and the instant case. There the injured party filed a suit before his death, but he had delayed the filing until it was barred by the statute of limitations, and thus his administratrix was denied the right to recovery under the wrongful death statute, even though the suit was filed within one year after the death of his [her] intestate. Here the injured party, Anna D. Moore, continued to live until after her claim was barred by the statute of nonclaim. This being so, any defense is available against the personal representative thаt existed against Anna D. Moore. * * * ”
The pleadings in the instant case reveal that plaintiff’s intestate was last exposed to silica dust on July 16, 1945, and that he died on February 16, 1949, not having filed suit against the defendant. By plea seven, thе defendant raised the one year statute of limitations found at Tit. 7, § 26, Code 1940, as this court, in Ellis v. Black Diamond Coal Mining Co., supra, stated that it should be raised. (The one year statute of limitations relating to pneumonoconiоsis in the Cumulative Pocket Part and listed as Tit. 26, § 313(10), has no application here).
We consider it settled in Alabama that under Tit. 7, § 123, Code 1940, there is no cause of action created at the death of the injured party, if at thаt time the injured party was unable to maintain a suit for personal injuries because the claim was barred by the statute of limitations. Moore v. Stephens, supra; Black Diamond Coal Mining Co. v. Ellis, supra; Woodward Iron Co. v. Craig, suрra; 13 Alabama Lawyer 50, (article by Honorable W. E. Brobston, one of the able attorneys of record in the instant case). Although this may not be in accord with the weight of authority, note,
Aрpellant’s assignment of error number 2 insists that the trial court committed error in overruling appellant’s demurrer to appellee’s plea seven as an answer to count two of the complaint as last amеnded. As previously noted, count two adopts count one and alleges that plaintiff’s intestate did not know that he was suffering from silicosis until October, 1948. However, since assignments of error 1 and 2 are argued together, and they raise the same questions, no separate discussion of assignment of error 2 is necessary or required.
Appellant’s last assignment of error, number 3, states that the trial court erred in overruling appellant’s demurrer tо appellee’s plea seven as an answer to count three of appellant’s complaint as last amended. Count three, as already stated, adopts count two and alleges that defendаnt knew that plaintiff’s intestate had silicosis before July 16, 1945, and had a *580 duty to inform him of this fact; but fraudulently concealed it from him until the statute of limitations had run, thereby preventing plaintiff’s intestate from suing the defendant.
These additional allegations in count three anticipate the defense of the statute of limitations which is pleaded in plea seven. “It is a general principle, both under the common-law practice and under modern procedural statutes and rules of practice, that a plaintiff’s initial pleading need not, and should not, by its averments, anticipate a defense thereto and negative or avoid it, or negative the existence of defensive matters, or anticipate and negative matters which should come more properly from the other side; * * 71 C.J.S. Pleading § 84, p. 198. This rule has been expressed by this court in Meharg v. Alabama Power Co.,
“ * * * The сomplaint should not anticipate the defense, and in doing so violates a plain rule of pleading. 4 Ency.Pl. & Pr. 614, and cases there cited. Therefore, if the complaint, after stating a good cause of action, anticipates an expected defense, it is liable to demurrer, * *
It is true that in actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be cоnsidered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit. Tit. 7, § 42, Code 1940. But this matter should be raised by special replication to plea seven and not by demurrer. See Tit. 7, § 234, Code 1940. In the case of Maxwell v. Lauderdale,
“ * * * In a way plaintiffs had alleged fraud in their complaint, but, after the statute of limitations had been pleaded, they should have shown by replicаtion how and when the facts constituting the alleged fraud were discovered, Gordon’s Adm’r v. Ross,63 Ala. 363 ; Henry v. Allen,93 Ala. 197 ,9 So. 579 . * * * ”
It follows that the lower court did not commit error when it overruled plaintiff’s demurrer to defendant’s plea seven as directed to count three.
The judgment of the lower court is due to be affirmed.
Affirmed.