85 So. 264 | Ala. | 1920
The plaintiff's (appellee's) case was stated in three counts. All of the counts proceeded on the theory that plaintiff's intestate (George Jones) was an employé of the defendant (appellant), and then engaged in its service at the time he was injured. The first count, drawn to state a cause of action under Code, § 3910, subd. 1, and section 3912, avers that Jones was injured on or about July 4, 1917, and that from this injury he died on April 10, 1918. The second count would declare for a breach of the common-law duty to exercise reasonable care and diligence to provide Jones, who is averred to have been thereby proximately caused to lose his life (Code, § 2486), with a reasonably safe place in which to work. Merriweather v. Sayre Mining Co.,
In the minute entry expressing the court's *49 rulings on demurrers to the complaint, this is recited:
"Thereupon, on agreement between the parties in open court, the pleadings in the cause are in short by consent, the defendant pleading contributory negligence and assumption of risk when appropriate, and plaintiff making such replies as are appropriate, with leave to offer in evidence the same as if specially pleaded."
Whether the agreement, as above defined, comprehended a general traverse of the allegations of counts 1 and 2 (that numbered 3 being later withdrawn) may be quite doubtful. In the view taken of the case on other points, it is not necessary to decide that question, which would turn upon a construction of the language quoted, in the available light of the trial court's statement, in the oral charge, that defendant had pleaded "not guilty" to each count of the complaint, thus casting the burden of proof on the plaintiff to sustain the material allegations of her complaint.
Subsequently, on February 24, 1919, the defendant was granted leave to file this "special plea":
"Comes the defendant, for answer to the complaint, and each count thereof, separately and severally, saith that the cause of action stated therein for the death of plaintiff's intestate is barred by the statute of limitations of one year."
In the oral charge the court stated that —
"If the jury believe the evidence, that it is not barred by the statute of limitations."
Exception was reserved to this statement in the oral charge. At the instance of the plaintiff, the court gave a special charge concluding to like effect. The court refused the general affirmative charge, requested by the defendant, concluding against a recovery under count 1; and, also, a like request with respect to count 2.
According to the apt authority of Williams v. A. G. S. Ry. Co.,
Count 2, declaring on a cause of action created by our Homicide Act (Code, § 2486) was not subject to the limitary effect asserted in the plea, since two years is the period expressly allowed therein for commencing actions created by it. L. N. R. R. Co. v. Chamblee,
In an excepted to excerpt from the oral charge of the court the jury was advised that, if plaintiff was found entitled to prevail, the damages recoverable were compensatory. This was error, as far as count 2 was involved, since the damages recoverable in an action under the Homicide Act (section 2486) are punitive only. Burnwell Coal Co. v. Setzer,
That the "scaffold" way, or ways, running behind and to the side of the battery of boilers was a permanent structure, a part of the plant and used in its operation, is clearly shown by the evidence, particularly that of witnesses for the defendant. Whether the flooring of this way, or ways, was fixed or was constituted of loose, overlapping plank or scantling was a subject of conflict in the evidence. That phase of the issue was due to be submitted to the jury. Whether intestate was negligently injured as claimed, and whether his death was attributable, in any degree, to the injury suffered, as plaintiff contends, were questions for the jury. L. N. R. R. Co. v. Chamblee, supra.
The trial court entertained and expressed the view, in effect, that intestate's life expectancy shown by the mortality tables was conclusive in the premises. This was erroneous, and may have been highly prejudicial. L. N. R. R. Co. v. Anderson,
For the errors indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *50