Illinois Cent. R. Co. v. Johnston

CASES

IN THE ALABAMA COURT OF SUPREME TERM, OCTOBER 866)

(87 South. charge person procured cient as defendant’s to who release agent the fraudulent con- ILLINOIS CENT. R. CO. v. JOHNSTON.* on, making unnecessary duct relied 775.) to other- Div. allege authority. wise (Supreme Court of Alabama. June 1920. — <&wkey;97(5) Courts 6. Master <&wkey; servant Rehearing 21, 1920.) Oct. Denied 250(4» New, vol. 15 Key-No. Series —Federal governs rights law substantive — railroad &wkey;>24(2) Injured 1. Release not employee and state law employee procedure. given to restore him as con- required money employee In action for avoiding to an dition to release. Employers’ Liability federal in federal law Act as by injured employee amended If the received (U. Conip. 8657-8665), S. St. §§ the time the execution of a release governs rights, as to the given substantive gift, himto as so that governs while the law as to matters relat- release, employee consideration for the ing practice procedure. required money, not to restore condi- of release. tion avoidance 7. — Master <&wkey;265(l) servant Burden proving, &wkey;>232(|i/2) Objection on relationship plaintiff. 2- and error Appeal — against pleading In an action not in demurrer not availa- specified railroad under the fed- Employers’ Liability on (U. Comp. eral ble appeal. Act S. St. 8657-8665), requiring specifi- §§ has the burden Under Code § proving relationship objections objection pleading, of master an and .servant. cation of replication specified ground a appeal. of the de- <&wkey;88(l) 8. Master and servant of re- —Test is not available on murrer stated. lationship <&wkey;94(4) relationship Contracts The test as party may 3. to whether the —Defrauded notwithstanding failure master and servant existed between the instrument avoid it. tiff federal read sand an action under the Employers’ Liability (U. misrepresentation Comp. Act The fraudulent 8657-8665), party St. §§ is whether the defendant of an instrument thereto or contents agent taking to direct the manner in which the the instrument affords effect, business be grounds should done as as the result the instrument’s not- well avoid accomplished. withstanding failure to the instrument. read — &wkey;>l7(2) Procurement fraud Release 4. Rehearing. On notwithstanding failure to read it. avoids — <&wkey;l02(l) Injured employee’s failure to read release New trial 9. Failure to discover negligence. avoiding preclude evidence must not be result of him from did ground signature pro- newly thereto that his Refusal of new trial for discovered representation. proper, fraudulent cured evidence was where there no show- ing present that failure to discover or such evi- agent guilty Release 5. <&wkey;52 Authority negligence. — trial was dence on the relied to avoid release the fraud suf- held — &wkey;o284(2) Master and servant Employ- ficiently pleaded. railroad ment or express held company Employers’ Liability under federal action jury. Comp. (U. 8657-8665)'for St. §§ Act against a In an action railroad juries employee, replication under fed- reply to an- Liability (U. plaintiff Comp. seeking eral Act pleading release avoid swer 8657-8665), ground an §§ release on the fraud held suffi- railroad, or, claimed denied S *Certiorari U. express company, railroad, of an —, —, and writ error dismissed 255 L. 41 jury. question for the held Ed. —. Digests and (g^oPor Key-Numbered Indexes in all topic cases see same KEY-NUMBER 205 Ala. —1 ALABAMA REPORTS $30,000 crippling by Damages <&wkey;!32(I)— plaintiff for the execution tion of II. ' following receipt namely: release, head not excessive. back and and to “ Express ‘Received American Com- year $30',000 railroad old of to Verdict pany ($500.00) five hundred and doL per earning at time of in- no/100 month $80 lars, I, sum, in and consideration of salary said Clar- trial had jury, been at the time' of which inju- Birmingham month, county per for B. Johnston of in the ence of $110 increased to helpless making Alabama, hereby him head and and Jefferson state of back re- to ries cripple causing pain him constant and mise, life and release forever the said accident, years held Express four (and trial Company after of at American the Illinois by justify interference as to any Company) excessive so Railroad all Central from and ¡-Supreme liability by any Court. matter, reason of cause or thing whatever, whether the McClellan, J., dissenting, saime arose J., Anderson, and upon tort, especially or contract claim and dissenting part. from all Sayre, J., in and have, may have, I now or which hereafter arising whatever, directly in manner either Court, Coun- Jefferson Appeal Circuit from indirectly,.in part, or or in whole from or on Judge. Ferguson, ts'; W.C. (cid:127) injuries personal by account of sustained me against the Illi- by 18th, 1913, Johnston or about C. B. November at or Action near county Company. Walker, Jasper,.in of There state of Railroad Alabama. Central nois “ testimony whereof, $30,000, ‘In 1 have hereunto plaintiff of set in the sum judgment for my twenty day seal hand and fifth of appeals. Affirmed. defendant and June, D. 1914. “ consisting complaint, of a ‘[Signed] ‘J. G. amended Clarence B. [Seal.] Johnston. “ Scott, count, follows: single is as Witness. “ Stone, Jr., ‘E. K. Witness.’ body defendant, cor- claims “Plaintiff by avers “Defendant the execution of county, state doing in Jefferson porate, business payment release and the said of said sum of on, damages, $50,000. Alabama, for that of money the cause of action here sued on was was en- defendant wit, November settled.” passengers freight carriage and of gaged in the prior “(5) That of to. commencement and Tennessee of states the. hire between plaintiff suit, in consideration of the.sum railroad, (cid:127)by and a steam of means Alabama plaintiff paid by wit, $68, of,' him set- employed date, while de- said cause in full the action now tled of sued on.” injured commerce, in Walk- in said fendant complained That “A. occurrences of Alabama, county, as follows: The of er plaintiff complaint in the fendant executed to the de- employed perform car in which jointly Express with the American breaking plain- one of was derailed duties his tiff’s Company, release of the cause of action sued lacerating hand, fingers, on his on, figures follows, which'was words and injuring severely seriously scalp (The quoted plea 2, above). to wit: release sys- spine, kidneys, back, brain and nervous plaintiff release was “Said executed consideration very thereby causing tem, endure plaintiff by paid $500 of then and theretofore suffering, pain great physical mental Express Company the American under an employment, great from his deal of time lose agreement understanding between the Amer- great expense and about incur Express Company ican the this defendant to injur- injuries, permanently said treatment of that this defendant effect reimburse would rendering permanently ing plaintiff and Express part Company American of said avers Plaintiff earn livelihood. less able to paid plaintiff by it; the sum so this and thereafter proximately injuries rea- caused were said son of defect pay Express did to the American defendant railroad at track of in the said Company sum of $219.66 reimburse said place derailed. car said where Express Company American for this defend- paid proportion ant’s for it sum said Complaint. “Amended American accordance complaint leave “Plaintiff amends agreement understanding, agree- said ment or known of which adding count of at the of first end the court the understanding was, substance, made following: complaint ‘Plaintiff avers the time of the execution negligence the de- to the was due said defect the release aforesaid. striking fendant,’ ‘Mis- out word says this defendant further “And sissippi’ in said com- occurs wherever the same repay tiff nor offered to tendered ei- inserting plaint thereof word lieu Express Company the American ther to this ” ‘Alabama.’ any part defendant of said sum of $500.” general traverse addition to A, separately severally, 2 and To complaint limita- and the statute amended following replication: filed year, defendant filed the fol- one tions of lowing pleas: answer to de- “Comes venl¡ general way plea —tí .n fendant’s thereto tion “(2) prior every allega- That commencement of this each material denies Express Company, plea. the American for it- suit said Company, plea way Illinois Railroad Central self “For further answer to said defendant, paid replication special plaintiff says, the sum thereto compromise signed paper plea and settlement of the $500 set forth in said said complaint alleged paper in considera- he not know the of said contents topic Key-Numbered Digests eases see same in all ig^oFor KEY-NUMBER and Indexes R. 00. v. JOHNSTON ILLINOIS CENT. (205 Ala.) liability deny (11) it was a release never defendant or not Because has ever tendered or execution of the release. knew appear else com- it does plained was deceived as to the and complaint. Plaintiff avers offered paid paper plea said to have contents of said s.um misrepresented (12) its contents to him settlement Be- of the case. affirmatively by agent Jr., appears replica- Stone, E. K. it from defendant’s cause said practiced by plaintiff not, upon not, a fraud him said Stone. tion that did and has Stone, representing paper said to be mere- offered return to or tendered to the defend- Said ly plaintiff moneys by alleged a statement as to the ant reasonable time the sum received within a plea paid plaintiff. (13) from American in said been to plaintiff have gift expression charity alleged pre- aas is not toward Because it that plaintiff reading by any and in no sense a release from the bility for lia- from vented said release fraud express company any practiced upon (14) said or one else defendant of the alleged him. damages injuries complained misrepresentations caused the defendant are complaint. sufficiently Plaintiff (15) of in the received he avers never set forth or described. It any appear by alleged misrep- consideration for the whatsoever was does whom said signing paper, (16) ap- nor of said he offered made. resentations were pear It does not signing misrepresentations consideration for the of’ the. of what said same. consist- moneys appear by (17) plaintiff Plaintiff avers that he whatever It does not whom ed. including appear (18) from the received amount deceived. It does not that alleged plea, represented alleged plaintiff’s knowledge said lack of or was due gift part anyone him Stone as unto said from Amer- fault on the of defendant or of Express Company expression legally responsible. (19) ican and as an acts it was whose charity part appear practiced toward and not as a does not fraud It what plaintiff. (20) release of the or consideration defendant Said denial said release liability anyone (21) alleged from else too late. set comes as facts out complained complaint. constituting inof do not as a fraud matter of law (21%) appear “C. B. Johnston. fraud. It does not constitute that said acting “Sworn to subscribed before me this De- Stone was line .within 13, Waldrop, authority. scope (22) alleged 1917. Wm. J. cember Clerk.” of his It is not gift.” intended defendant said aas pleads plea Plaintiff to the defendant’s A Burr, Birmingham, Perey, Benners replications, separately the same and several- appellant. pleaded plea ly, which he has defendant’s day 14 pleaded 2. office this of Dec. 1917.” “Piled in reference to the court erred replication pleas 2 To A the de- replication thereto. written release and interposed following fendant demurrer: 470, 530, 280; 48 158 Ala. 170 Ala. 54 South. 394, 546; 246, South. 6 South. 144 Ala. 40 “(1) replications It is not denied in said but 870; 804; 143, 41 Ann. 148 Ala. South. Cas. signed that said release what its some time he knew 084; 607; 208, Ela. 56 South. 69 62 provisions were, South. and there 298'; 125; 396, 33 is no averment fered to return the said 192 Ala. 68 South. Ind. that he ever returned or of- alleged 290; 44, (Tex. App.) sum to have Civ. 51 W. 58 Neb. paid (2) alleged plea him. It said ; 143, 618, 11 78 482 23 Ela. 1 South. N. W. replication and not denied said .that Rep. the na- Am. St. 345. The decision of paid by $500, defendant sum of the said courts, tional the federal U. control in the construction of replications and it is not in said Liability Act. 233 plaintiff has over returned offered return 501, Sup. 1062, 635, L. 58 L. Ed. 34 Ct. money, said nor did offer to said con- rescind 1915C, 1915B, 475; 1, R. A. Ann. Cas. 228 though provisions tract he knew what the 703, 1031; 702, Sup. L. 33 Ct. 57 Ed. (3) the said release were. ters therein set forth Because the mat- ICy. 363, (N. 1119, 155 L. to 153 S. W. 47 R. A. sufficient legal avoid the said force ) facts set forth S. 31. The federal courts have never fol- plea. attempts vary (4) Because it 122, 22 22 lowed the scintilla doctrine. Wall. by parol the and conditions terms of a written 780; 284, L. 24 L. Ed. 59. (5) contract. Because facts therein sot plaintiff allege prove was essential that plaintiff’s duty forth show that it was to have paper signing same, read said before company. railroad Thornton’s Eed. L. & S. that he is bound same whether he read Appliance Act, 50; Emp. Thornton’s Eed. (6) or not. Because it does not show 50; Act, 84, Sup. 491, Liab. 59 237 U. S. 35 Ct. could not reasonable proper dil- igence part case, Ed. 849. Under on Ms have the facts in known the contents paper. (7) said Because the facts therein the was not an of the de- forth set contents show bound 84, Sup. 491, fendant. 237 U. S. Ct. paper sign that he 849; (O. O.) 669; L. Ed. 122 Eed. 38 OKI. (8) know the thereof he cause said contents or not. Be- 655; 134 Pac. 232 U. S. replication does not show 798; 120 Fed. 57 C. C. A. tiff has ever offered to return defendant 52; 166 Ala. 52 South. 139 Am. St. the consideration set forth in the release set Rep. 59; 215 111. 74 N. E. R.L. up pleas. (9) in said Because it does not show (N. S.) 674, Rep. 187, A. 106 Am. 3 Ann. could not read was otherwise 42; prevented Cas. ascertaining 239 U. S. from the contents of replication paper. (10) said Because said does ALABAMA REPORTS Ky. 1, all of W. sideration court; the members of 60 Ann. Cas. presumption in 1918B, its entire submitted contents No judges Par- plaintiff’s employment first hand to the in consultation. can favor scrutiny Ala. has been dulged. .144 ticular deliberation Ala. 12 South. given whole Ala. Rep. S.) main trial and that the court (N. laid before Am. St. ,for a the motion new erred connection with Court 62 South. 721. 183 Ala. plaintiff’s trial. permitting to read counsel appellant the tri- separate emphasize 1. It Sec- is insisted charge it. overruling al court erred the demurrer Acts amended tion 1915, Code pleas A, reproduced replication 2 and p. ; 45 the 47 Ala. 15. 52 up Rep. App. the statement ante. These set ; in release of Am. liability, signed by plaintiff. rulings the on in its 88. South. The court erred avoided, 386; re- the a bar to jury. Unless covery release was plaintiff’s argument Ala. 74 to the Disclosing 1914C, read- action. two 876, 338, Ann. Cas. Ala. 175 1037; 57 South. replication distinguishable aspects, ily the 528, 490, Ann. Cas. 187 Ala. 65 South. sought pleaded avoid the the release 1916E, 565. averment, aspect, in the the contents; ignorant of tiff was its Birmingham, Denson, and J. J. A.W. be; purported know was what it appellee. did not Montgomery, Mayfield, for misrepresented agents the defendant’s grounds of no can consider The court contents; 'that he deceived its interposed. Section than those 1907; demurrer 5340, agent ;(cid:127) of de- and that the named contents 332, 827. 18 South. 108 Ala. Code and, him; practiced fendant fraud ruling error the There was no special aspect, replication asserted in the other the 578, 45 South. replication. Ala. 154 release, of. consideration for the a want 546; Ala. 475', 906; 170 48 South. 158 Ala.. alleged by averring money, the matter the 538, 280. event South. In 54 pleas in the instrument recited the presented properly was charges. to have received of release discharge for replication was sufficient. But the liability defend- from of both 126; 607; 395, Ind. 33 South. Ala. 69 194 Express Company, ant the American 49, 290; App.) (Tex. Neb. 58 51 W. Civ. S. given received, was not as a considera- 537, If 483; 280. 54 South. 170 Ala. 78 N. W. release, but, contrary, tion for on the case to take evidence is jury the the sufficient gift plaintiff. only pure hwas The ob- court, it was sufficient in the state jections replication taken to those are Ky. 163 court. take it there the federal to 125, S47; grounds noted in the the of demurrer set out 343; Ky. 824, W. S. 171 173 W. 161 S. preceding statement the case. There 151; Ky. 843, C. S. W. 99 162 173 S. ground taking point is demurrer 173, 639; E. 445. 104 83 S. E- S. C. joins replication improperly two dis- that tinct matters in avoidance of Although Li- based the federal pleas 2 A. ability Act, tried and was cause triable Co., v. Berlin Mach. Works Ewart 184 Ala. ap- court, rules hence local state 272, 281, 567; Highland 63 South. Avenue ply. Sup. Ct. 60 241 U. S. 36 Dusenberry, Belt Railroad Co. 413, 94 Ala. Sup. 1016; Ct. 60 L. L. 240 U. S. 36 274. The doctrine these Sup. 745; 242 Ct. 61 Ed. U. 37 departure apparent is at least an decisions the federal Ed. 319. Under court, the rules of pertinent rule from the stated Houston questions employment were all the McKenzie, Hilton, Bolling Ala. 67 jury. properly Eed. submitted 239 among other earlier 89 Ala. pronouncements. 7 South. 658. 125; 239 152 C. C. U. 36 grounds assigned To the 139. an em- here will phase the review be confined on this 489; (Ind.) ployee. Ala. South. case. 218; E. 44 N. E. N. Mass. plain [1-5] If the received Ala. 60 N. E. gift, affording tiff was no consideration South. 41 Ela. South. A, the release 2 and asserted Labatt, 56. to restore was under money, received, so a condition to his McCLELLAN, appears J. As from Ry. of Ala. of the release. West. avoidance statement, foregoing pilaintiff 414, 426, tire Arnett, sued Ala. South. 997: v. B. R. L. & 537, 539, damages railway company (appellant) Jordan, P. Co. v. personal resulting consequence, from de- 54 South. 280. passenger grounds 1, 2, 8, railment of an train. interstate the demurrer’s against carrier, The action is an interstate faken. In the brief for 22 were not well by time, was, urged replication appellant who avers that employ the-railway company particular: That it did deficient in this duties, discharging misrepresentations inter- and then 'not aver commerce, employment. sign state instrument. induced very ground has been record accorded careful con- is no of demurrer tak- there Since ployers’ n important exclusive within terstate governing 70 parte in lation of master and whether way company (defendant) 8665). injured. c. raised ises. The L. & N. R. R. Supreme wise to aver Stone’s were sufficient in grounds considered ant’s the ulent conduct es, fusing special would have concluded in which the the not, tions of his clear any ing statute ing withstanding the plaintiff’s duty signing therein respect, court, grounds drest — tion of tents of an the supra; 2. The [6] The overruling pleas South. there effect of the grounds instrument. West replication, respective pleas railway fraudulent 36 Stat. 291 ground under 255, 258, agent justified Atl. replication being 35 Stat. parties neglect aspect, agent That objections Liability (Code, it. cannot be avoided service, there to avoid the Burroughs of demurrer 2 Court are noted. The next objection allegation inquiry the motion for a Coast Line R. the in and the replication instrument in the replication Burroughs’ of this of demurrer asserting Co. v. company (defendant-appellant) the demurrer. taking no enactment did not read the was an the confined Ann. § the action requests relied. allegations rights is question upon to have allegations misrepresentation misrepresentations where the decisions of well taken. 53-10) requiring replication’s Act. necessity the field of signator cannot avail (U. the amended light read premises, charge Stone, Carter, Cas. positive, When the demurrer, servant existed pleading authority instrument’s which Acts assigned, Ry. refers —it the evidence was not Pac. for'instructions to action the amended Case, supra. Hence, of the the release read the 212. The 1917E, (and, Comp. is ILLINOIS instrument, which it asserting, of the these Co., of the or occasion neglected liability of this 195 Ala. party complaint very paramount replication substantive —this Like averments Guano new Congress engaged the mere fact its with another 190 Ala. replication averments of in paper federal circumstanc- did court replication, paper is of the con- subject as defend- replication review) thereto, release to the fraud- —the operation. effect not- considera- appellant. trial, invalidat- aspect described specifica- the trial criticism §§ was ad- 383, 385, between vel non asserted federal entirely CENT. and Ex contention involves because not err to read Arnett, the re- affords before other- effect, prem- in re- in in 8657- —our being rail Em law or Court of the c. is is in the’ domain of the exclusive E. CO. v. Ala.) Alabama bama, § eral Clark, supra), in quiry federal structions, is lished merely, supporting thor, supra. ly- consideration, in Clark, later (see Vermont seq., Cas. thority governing respects the only forum, supra, ed in tional for defendant. Holloway, porting state law —is trol Atley, service nection, a review, v. De 867. Where quiry, and ject Ct. is, and the sion here is West, ^[7] subject part, federal which passing upon would hence, determining, the definition federal parties —matters Supreme 1916B, 252; 60 L. Ed. rule appellate, to the exclusive It is contended quoted laws the conduct raised 232 U. 525, 529, among Atley, supra, JOHNSTON commonly Ency. is the federal performed local pp. 1599, it could not be well act; if and will be Sup. matters is a federal 60 L. Ry. White, would assert and have vindicated inquiry decisions; L. & N. R. R. Co. v. withdraw applicable U. (stated material supra. averments Employers’ Liability whether statutory requires subject United proposition 241 U. S. law, paramount and the others. PI. & Pr. Whether Court. Ct. by appropriate, not the rule from chiefly pertaining in effect Ed. is in administration 278, 284, at government of the If created called stated 1600), the Employers’ Liability of causes “practice & O. to review In actions nisi “practice of law the ease issue Liability Commissioners, States. recognition there in in Commissioners, v.'hose question, necessary reviewed, M., requested the procedural 59 L. court government substantive Thompson 310, 316, 317, such is the 310, 317, point brief prius, pp. pertinent Ry. in the directing is due to should & O. is above, Sup. Ct. 471, decisional —not the K. appellant’s prevailing L. & N. U. is right L. Co. v. De 675-678, noting from C. decides “scintilla Ed. T.& an action sub- and control of subject be founded, Ry. Act. Central Holloway, premises. requested like remedy and its deci- Ed. & O. Act, in this con- of this courts, premise, up be observed to be estab federal instructions appellant- federal au- referred, procedure" law of the procedure” to recover be rule Ry. a verdicr rights legal category 59—that evidence Supreme error 36 etc., Ry. the na- in Ala etc., the in- observ- Trials, of the 511 Atley, stated jury’s mere- R. rule” Ann. trial Sup. act; sup- Act, con- fed Au the Co. in in De As be et is v. 205 ALABAMA REPORTS jury primary controlling such a character that it warrant the consideration. would proceed finding favor verdict gist inquiry manifest introducing Ryder party Wombell, such evidence. thus dis- made is whether the Rep. 4 Exch. 39. Law charged proof by him the burden assumed may “Decided cases be where it is held found pleading imposed federal support that, there is scintilla evidencein if case, (Robinson act B. R. R. U. S. v. & O. judge of a to leave it to the is bound 84, 94, 849) Ed. jury; but modern decisions have established respect averment material wit, that, rule, reasonable before the more (Robinson’s supra) Case, jury, may contractual relation is left to there is or every preliminary master and servant existed for the the. case literally evidence, judge, alleged, presumption there is whether that the any upon there is which can but properly proceed producing (Mathews relation Co., exist v. A. G. S. party proof to find a verdict the 19). it, upon whom burden Supreme N. E. Court said N. O. & R. Co. imposed.” Harris, 367, 371, 372, U. S. ap- 1167, following pronouncement re This has been often plying the doctrine of its deliverance in Cent. iterated, Boston, notably in Bowditch v. Ry. White, U. Vermont S. 507. 16, 18, 25 511, 512, Ann. Dernberg illustrated in the federal courts. 1916B, Cas. 252: (D. C.) er B. & O. R. 234 Fed. proceedings brought “In under federal 407, many See, also, where are noted. cases Employers’ Liability rights obligations Act (Rev. Ed.) pp. tion of of is a matter substance a is entitled have to verdict direct biirdo.n subject not to control laws of the sev- if measure ed required by his behalf of evidence (Italics supplied) eral states” in denial —this the federal rule Is not application Mississippi pro- a of of statute discharge plaintiff1's the court in of the to bur injury complained viding shown to have mentalities, of was that where proof on a matter den of material to his railway been inflicted instru- Boston, supra; v. ease. Bowditch Delaware among agencies, the of fact Converse, 472, Sup. R. R. S. Co. 139 U. 11 injury prima made a faeie case of want of rea- 569, Meguire Ed. In Ct. 35 L. v. Cor and care. sonable skill wine, (25 899) L. 101 U. S. 111 Ed. it judge right “A said: to submit has To the same effect is Y. M. V. & R. R. Mullins, Sup. a where the state of the evidence 249 S. 39 Ct. 63 U. Bank, In Penn. R. it.” North Co. v. forbids L. Ed. 754. Sup. U. 123 S. 8 Ct. 31 Ed. L. Under those the matter decisions of bur- proof regarded “It was the observation: would be of of the den of substance is created proceeding right to submit the to idle evidence tbe federal act and they only jury justly hence, category is, “practice the when could find without of requirement way.” procedure” subject Whether the is otherwise to and the control of the forum. The rule, right law, as a to federal condition local law of jury, necessary matter issue to has submit the result is that the in- party by appropriate request quiry, on whom been met rests the raised for in- proof, inquiry right preliminary against of burden is structions who, judge, recover, to the is addressed is said tiff to the burden of Ry. Co., discharged proof T. & P. 179 U. par- met Patton v. S. or in a has been (45 361), Sup. ease; pri Ct. “is ticular been mission whether sufficient evidence has just responsible require marily justify outcome of to issue to the or the sub- adduced judge being jury; charged trial” —the' the that In bility under is ba responsibility” jurisprudence prius “with full under measured and decided at nisi. rule, restated, premises. applica of to be This view the federal later rather rule, (where rather than than the “scintilla rule” tha of the stated federal under rule, respect slightest or re- of the local to the dis evidence inference therefrom charge proof quires jury) prevailing non of the burden of vel submission Liability Act, nec the federal is Alabama in the trial of causes unaffected federal essary orderly, to an uniform administration The federal under consid- law. rule Commissioners, matters of eration substance created is thus stated etc., (24 Otherwise, Clark, S. L. Ed. 94 U. act. there would be no uniform jurisdiction 59): ity in state to enforce —called (Minn. right federally the R. created “Judges longer required are submit Sup. Bombolis, R. v. merely jury case to the because some evidence 1917A, 86, 961, L. R. A. Ct. Ann. L. Ed. party having introduced 1916E, 505) proof, the “scintilla Cas. burden unless the be j —where v. JOHNSTON R. CO. CENT. ILLINOIS rule privilege propriately eral observing material to the bunal Rahn, local evidence to quiring pellee, eral Railroad Co. plicable Adm’x, v. A. and mere “between authoritative direction and course, decided Harris, supra) bo a matter of substantive quested general whether the asserted right merits of ship trial court in quests L.C. ness Carolina. These deliverances did what er entertains the er-established eral dence” should defendant master enter because of the ruling necessary allegation against ring justices are, that, der ern in the trial court’s action the test to determine the existence vel non Supreme Court of the United ^[8] practice being necessary carefully accomplished, or,®in injury, following decisions, Ky. 125, the federal (21 rule, act, averred existed at rule, prevails. shall what injured: law, shall L. & courts: to Recurring since exacting hold evidence,” determining the motion for new take obtaining govern submission relation direct the in the trial of had so would be accorded L. R. tbe “scintilla rule” the recovery suggestion and not the “scintilla rule of evi as to consider or to decide N. R. be rule, asserting Ky. 824, reversal of the general that the rule discharge, proper institute his 173 S. W. done, L. N. fact question, done, 104 C. the relation courts It has issue, refusing procedure merely. Co., affirmative instructions. federal or Employers’ Liability Act, R. Co. v. R. & to the 440; Chicago, far 220); Singer Mfg. opinion rather less 518, 522, manner existence, stated federal (N. Hanning, determining by plaintiff. but however, the account of the as the burden error master and servant 171 S. affirmative instructions the courts of as as to supported of his burden of In state & O. N. E. R. R. degree employer been decided how well as the to the extent of noted other the propriety consideration of the Y. Kentucky to have right, than the that the stated fed S. C. committed Holloway’s action in the in which the busi of an interstate state, details.; time the it shall be W. refusing Co. v. Johnson’s trial, judgment at the time of words, defendant’s on brief for of the- 88 S. E. 445— under the 15 Wall. servant to this the stated or Mulligan an undeserved actions in the to plaintiff, ap jurisdictions whether the of matter the “retains the evidence. The justified The concur etc., measure States should rule, forum, distinguish vel non of pertaining proof, The writ Alabama, now, result material relation plaintiff plication not, * * control, opinion the re Dutton by Adm’r, for v. tO'the American Co. Co. v is not done,” proof. is South v.Co. must over only discharge fed fed gov this of lat tri ap un ap the the re Ct. in re E. to is evidence or the ” Ala.) 212 480; Bond, 239 U. S. 227; 83, 95, that, Fed. from the decisions of the the servant of a ly not bear that relation to such fact that the a defendant under the doctrine of ante is not The and, wherever between relation of fact lect, employ, person is, 53 L. Ed. power criminative firmation or denial of the existence of the rally grounds because that & service stated, service, directed to two main issues was whether Master Ford, ed on From a review of the whole evidence adduc- ence of the relation of master to the defendant existence of other is on Standard The motion for new trial contained the third L. Ed. Servant, response any particular explanation, Cent., negligently were especially principle 469, 471, New if the control defined conduce to Harrell subd. between two course, person whose person, train, having at the that the verdict was proper eases, controlling operation Mo. 215, 227, or effect in the 202, 206, of his duties as sole 66 Barb. Orleans, do indisputably 162 C. C. Servant Oil present, select, employ, compensate, main master showing § person rendering 3. But this that other’s person rendering the inquiry another compensate, inquiry is “no absence of App. 212, 220; status found 160 C. C. A. 479. Standard Oil Co. plaintiff’s injury, sought inflicted time, cannot avail to avert serviceable 220 et when he Express it is passenger great preponderance prove. particular was, relation pp. trial, conclude Atlas, etc., to be accorded event the relation he averred. and servant with etc., (2d Ed.) 306; A. (N. apparent the involves doing was 56-60. In the arises inferable, prima facie, Anderson, sec., person established: Co. v. United these respondeat superior, Y.) power of the test stated. 1 Labatt effect, inwas employ. such rule is denied whose subject. shown, against made train present to establish the master held § transaction. Supreme Court contrary service for an- baggagemaster , conclusions Co., McCann N. masters) asserted Sup. Ct. discharge a case where master. investigation, powers in one to se- explanation.” affirmed that in the wreck and servant operated by responsible, Squire, control, judicial the actual damage one of the on Master (not Anderson, particular particular quotation influence, Wood on (especial- Evidence instance, Perry (a) absence Cyc. respect results States, to the of the U. exist- to be natu- That Fed. does bore dis- the ap- af- p. ALABAMAREPORTS gave company other company) express when evidence. with the railway considered in connection entirely may position assigned It have consisted him to the injured; (b) the existence direction with and control” in pany, right of “authoritative interstate run he was on which paid Com- monthly compensation American that his railway having company (c) but express company; duties that his express suggestion service, as to details.” mes- of “mere he acted as where Hanning, supra, senger baggagemaster, defined and sole Railroad decisions before cited. Taking (d) company; account express due him opinion report, alone, express company, power of that, this court’s relating v. Ma- Cobb under the familiar rule of him. The plaintiff’s lone, Birmingham trial connection with overruling Express Company new motion for office erred in of the American court trial because overwhelming money weight relating injury, paid after him service rendered after his evidence, “allowing gratuity salary all either as reasonable jury’s presumptions” injury, in favor of the conclu- and that his sion, not, prove relating pay roll or went to character of re- injury, ceipt (other time of bear the conven- than release out set railway upon A), 2 and tional company were without influence tire relation employment employer, plaintiff’s oí issue non essence vel railway contract, express injury. company at relation of his testimony plaintiff, himself, implied. not or does indicated, judgment interpretation money paid admit of him after his For the error is re- versed, sums, remanded. was a sum con- and the cause is stituting salary, railway to which com- and remanded. Reversed pany salary plaintiff. contributed ANDERSON, J.,C. and SAYRE and SOM- himself, plaintiff, testified, and so aver- ERVILLE, J.J., concur. replication, paid red GARDNER, BROWN, JJ., THOMAS, and company express injury, after his dissent. work, while he was unable gratuity. a mere Rehearing; On response appel- to BROWN, The statement of action is This against J. question, your employment Johnston, lee, “What Central the Illinois Company, 1913?” on November that “he was train common carrier of Railroad terstate leged baggagemaster commerce, personal injuries the Illinois Central Rail- al- road the Illinois Central Railroad Com- been received have only: November, pany,” day To as a was to this effect show what on the 18th date, doing negli- proximate on the fact work was of the defendant’s stated —a result as indicate, complaint, and, gence, definite- that did while evidence, employed under the whole whether he in such ness express commerce, provisions was at the time the company rested company. railway Employers’ Liability or the ofAct of the federal employeeship [Comp. not, itself, April Stat. inconsistent with Stat. company express 8657-S665]). the doing superior and relation §§ that work, here) (appellee plaintiff and under the that instance concedes The express right company, of the to recover under direction it his is essential company. According railway the is on him to show for the test before termined ed that the burden was an act this restated, whereby employee may of the defendant it be de- he that engaged commerce at the one of the whether the relation averred exist- in interstate injured; plaintiff injured, this was the he at the time time essential was complaint. authoritative, power of his Hull control over averments detail Philadelphia Ry. Co., 475, Sup. plaintiff’s discharge messenger express 252 U. S. the duties of baggagemaster Balt. & L. Ed. Robinson v. and sole on the Ct. great weight by R. of the train the Ohio was. shown express company. evidence opposed, original ques only [9] On of the fact or circumstance consideration conclusion, that, degree, by this under the of the court on tions the the action evidence, trial, plaintiff undisputed motion for new it was ruled that this re- was acquitted neg baggagemaster quired report the ligence had itself of defendant to make respect general baggage agent to its failure to discover of the defendant the alone, newly Chicago, fact, present the at 111. This considered discovered raising the K. M. & R. capable on trial. B. evidence an inference that this was Phillips, right railway duty company performed discharge report implied 13 South. Mc Co. Clendon McKissack, 143Ala. details of the work to control the Ry. Wildman, by Sou. respect the of the lays necessarily ruling This 24 South. 764. out of view him of the duties referable alleged newly the evi discovered subject report. possible the of such This the to be itself, dence and now considered is, ferenbe weak and inconclusive R. CO. v. JOHNSTON CENT. ILLINOIS Ala.) Cairo, of the accident. at the time offered and and were from the be determined must * * * long positive I had I am not how considered to and submitted trial the on injured.” the run I was been on when jury. by the reversal ground the which on sole plaintiff testified On the cross-examination the evi- that was judgment was awarded the Stone, super- employed by E. K. that was he wholly in- plaintiff was offered dence Company Express of the American intendent finding jury that warrant sufficient the applica- Memphis, Tenn.; that made he at defend- of the plaintiff was an employment Amer- with the for tion to Stone ican Therefore, injured. he was ant at the employed Express Company, and was case, assuming that purposes for the formerly that he had June about proof substance of of the the burden of company express like worked capacity, act, given federal of action duties; he that and understood requires that which rule federal that the signed month, pay twice a received the press must be offered evidence- Ex- pay American roll at the office of proceeding to a warrant as will verdict employment Company; his first (Rider v. in favor of previous; years capacity ten was about Rep. Wombell, Bowditch Exch. Law employment occasion of that and that on the Boston, Delaware Adams, super- application to a Mr. made he Converse, 139 U. S. R. R. Co. Company Express American of the intendent at St. 213), “scintilla and not the employment Louis, he and under that proceed rule,” applies, to re-examine we will Express “American worked for the question. Company.” Railroad Illinois Central and the dispute that without The evidence shows Scott testified witness defendants train, which resulted the derailment .of Ex- of the American that press plaintiff, injuries inflicting on the Company; never been in the that he had operated passenger train the defendant a on its road between company employ had Ala., Birmingham, it; whatever with that he no connection not know gagemaster carriage Chicago, 111., passengers for bag- much about duties of a baggage; purpose for and their route, except that he was carrying baggáge it carried as a of the supposed baggage; i>art to look after the compartment baggage express train a express duty messenger to do was the this, car, compartment in one of which was car- knowledge arrange- had no but he baggage passengers, ried the and in the express company and the ment between express Express for the American company, if there was. K. railroad Stone, E. Company; was the sole for testified a witness baggagemaster on train Bir- injury between that he at mingham Cairo; day that on the prior superintendent which of the Ameri- thereto plaintiff received his the train left Express Company; Johnston can time of the Birmingham Cairo, for manned of' working crew for the Amer- employees, the defendant’s in with the Express Company, ican been work- charge baggage express car; ing them, employment, last immediately that at time of prior injury; be- four or five months to his fore the derailment of- tiff was the train made letter actively engaged (witness) employment, wrote baggagemaster, making his duties as probably provide place out a him he could report required which he was him, to forward to came and he down “and did extra run- general baggagemaster ning messenger,” of the defendant at express messenger time he was company employment, in phicago. injured “running As to his response' Company,” testified in to the fol- for American at a lowing question by salary per month, paid his counsel: which $80 company; express was “his Johnston, employment your “Mr. what was express to (cid:127)to receive and deliver and from on November 1913? “I Answer: train was a han- the cars and make record of as he baggagemaster on the Illinois Central Railroad bag- baggage dled it —also and handle Company.” for the Illinois Central Railroad gage supplies manner”; in the same that no except Express Company one the American And, further: authority employ had as ston or men baggagemaster express agent “I as express messengers acted and to do the work John- Birmingham Cairo, on the train from 111. On they doing time; at that were was Birmingham this toward going occasion I left at noon paid by express company, their du- and Cairo, baggage going we had and as express labor com- ties and controlled Canada, positive far as I think—I won’t Be pany. On cross-examination this witness tes- baggage beyond going about that. We had Cai arrange- tified that he did know what through Chicago. ro. It was a train to The Company ments the American with the through passengers Illinois Centra1 Railroad carries Illinois Central Railroad freight Birmingham, and between and Cairo. express messenger which the handles They of general do a business common of carrier company; baggage freight passengers of the railroad Birmingham and between 205 ALABAMA REPORTS .surgeon :a stance manent, destroying jury, ple panied if self two integrity, is have The that pendent gagemaster sidered tion which he ed R. were iness pany two shortly Gas. Ala. v.Co. at the fered Smith, E. aspect was, for its trains —the work rule, tion. arranging such agent, was doing ed to thority The evidence short ^[11] [10] The single so Anderson, R. $110 the submission work and and his examinations 63 N. North Carolina charged since that 1914C, grossly shown to have and warranted and the railroad or other awarded agents under which arrangement testify Co. matters were cannot on The at the time of Treadway’s perfect health; or that as completely, he was time of affirmed life; is whether than the years .was on his -labor before of per earning employee for the constant E. next and evidence stated long experience, for the Williams, he was family; on month. trial to shed excessive 62 212 U. S. after the suffered a with the that his pertinent rendering case on the performing documentary then plaintiff’s a new earning a result Driscoll this the trial-—-testified warranted power Dallas doubted employment age, superintendent. Adm’x, between destroyed. T. C. Co. appeal, of the pain held has the verdict injured. subject, them final express that at the time 22 South. handled that he was company, disability trial on 540; to this knowledge of the bus- injury this physical $S0 displacement Mfg. of injury which I. defendant was salary time of his content Drennen splendid light 120 Va. the duties railroad Towle, of the defendant testimony the accident Standard the court evidence per clearly question to the of and support who had finding eompimy, been increased finding suffering; A. C. of and the other inquiry —and Dr. helpless some employing express Zachary, 232 if such there month; baggagemen practically, —-the to rest higher wholly Hayes, to be this 74 South. physique, this case & Co. Davis, warrant- company contract, R.L. Townes, in sub- ground. was of mental yet Oil Co. accom- terference should injury of officer, shows Mass. made doing ques- Ann. posi crip- him com- first v. Harbor & S. B. bag- healthy per- call- vember con who was his this de au- lower lumbar of- N. R. Ry. been sustained for 604; 185, value than those R. R. npw, physical sense awarded are Co., was such jury together or so light, loss judgments and that ties lie pany all bother ime wink, just more constant when position ered put it as I am able the accident. I have not been able to able work able to and this my employment since that time. I have never- could take a trunk or in jury later usually been able to work. -[Here witness pled back wound conscious. When I came to separate [illustrating]. “When the train derailed I was While' healthy do these down, physical opinion Co. v. Matkin 160 Cal. vertebrae, causing 115 N. Y. given employment Id., employment. me before and we -was that since Co., 96 heavy, after the I am evidence extending time. appear I accompanied high less, finger joints; earning capacity, cashier are and mental with the financial loss pain, 107 Tex. badly hurt, the sacrum get disabled. his reasonable and some lie man before this. I was except for this here awarding larger vigorous sitting employment, produce injury there, 237, some S. at [Witness ever since I physical so damages My vertebrae in court when it comes to what this court. do. I was crushed Supp. unbearable this accident. that.” cannot as a medium of further that the all to do shown. from here to here award in its office in convinced that the excessive as to and on the trial four could not (Tex. rest, kidneys 125, 267, & taking reason testified: man. I have and I nights condition before the in- worked and baggage 320; S. more or less with dull joint Pac. weeps.] My relax at my but there 79 S. E. awarded were in perform that, Ass’n, Civ. shows that a month to such i-s Huggins left the tendency suffering, plaintiff’s injury worked expectancy anything. sacroiliac looseness pain. My had received Zibbell though pain, into back pain; permanently 513; I myself bother me and In normal mental condition S. W. on both sides of position. perform App.) regularly up I don’t was let damages weeps.] damages have not been consideration more serious broken. express Birmingham, goes night occurred No- 406; Hughes the duties of Tex. not been able all this exchange extent regularly. and that depreciated knocked un- hospital never both- v. So. Pac. v. [indicating], justify I found 1098; of such in- they strong App. disability; head don’t pain reason of back sleep I am not damages way & when I In this out before times C. L. years ** some, I was were have com- scalp Pac. Div. crip- time life, Mc- way du- W. and my he * I STATE EX PARTE U (205 Ala.) 1, Co., Ry. 148 the for this reason verdict 127 Minn. excessive Mahon v. Ill. Cent. N. ster, judgment Ry. 446; v. Web- the should be reversed. M. Co. St. I. & W. L. McCLELLAN, J., 1197, ANDERSON, J., Ann. S. W. O. 99 Ark. dissent, expressed adhering v. 141; Co. Reeve 1913B, T. to the views & C. Houston Cas. original 729; opinion. Gray (Tex. App.) 137 S. W. Civ. Co., 152 Cal. v. & Electric Colusa Gas App. Barton, Ill. Penn. Pac. (87 703) Co., Sugar Refining 573; Huggard v. Glucose South. 126.) (6 Iowa, KING v. Div. Waters-Pierce STATE. 109 N. W. App. Snell, 106 128 Tex. Civ. Oil Co. v. 28, 1920.) (Supreme Oct. Court of Alabama. Ry. 170; Padrick Gr. North. W. 1915F, Appeals. N. W. R. A. Certiorari Minn. Court Ry. Co., Minn. Gr. North. Otos v. manslaughter, King Tossie convicted of affirmed, judgment Appeals (17 150 W.N. affirmed Court App. applies 701), v. Chi. Hackett Ct. L. South. App. 140; Id., Ry. Co., 228 for certiorari. Writ denied. I. Ill. & McKinley, McQueen Aldridge and J. M. Ry. Co., appellant. Minn. Tuscaloosa, Wis. Cent. Foster, Whitehead all of for Q. Smith, Atty. 254, 467; Gen., R. Co. J. for the State. Yazoo & M. V. N. W. Wallace, South. 91 Miss. King BROWN, Application J. of Tossie for (Tex. App.) Ry. v. Waits Civ. Co. S. W. Appeals certiorari the Court of review 870. 164 W. judgment of said reverse the and decision Williams, L. & N. R. Co. v. the case of State, King court rendered in the case of Cas. 62 South. Ann. 3 Ala. 18 1915D. awarding App. 536, 87 South. Writ denied. 701. judgment 483, this court affirmed a $27,000 for an not as serious case, injuries in at that as the (87 594) present purchasing its had double the dollar Ex STATE ex rel. parte Atty. Gen. SMITH, power. observed: there It was 266.) (8 Div. freely verdicts, conceded, it is do not “These (Supreme Court of Alabama. June 1920. average conceptions juries, as illustrate Rehearing 6, 1920.) Denied Nov. general run of the cases reviewed shown to, referred brief Digests <gx3>Por topic other cases see same Key-Numbered in all and Indexes KEY-NUMBER Notes “Lit Rose’s depend upon common applicable principles it and of erally no evidence” is not the exaction of the interpreted applied in fed- law rule, federal as it “scintilla negligence courts; eral covery. is essential to re- * * obtaining long * rule” Alabama. It has been principles These established * * * jurisdiction ques- make settled fendant federal de think it clear that we proof

Notes

notes in the two <@=^47 4&wkey;33 1. Bail corpus —Habeas —Probate But, appellant. noted the editor of for as judge not hear may bail application for 10), Ann. Cas. has been Cases tend- Annotated capital case, such cases determined years ency verdicts to in recent for n habeas corpus. appellate sustain, award, courts increas- 6331-6335, probate Under Code §§ compensation personal larger ingly sums for judge bail applications is not authorized hear for attributable, doubt, injuries. to dollar, nearly This by prisoner cap- under indictment for a purchasing power greatly of a decreased offense, ital but cases are to be determined price exemplified in the rise corpus. on habeas commodities, the enormous increase in all and, measure, living; per- &wkey;>23 in some Courts 2. —Solicitor’s consent to the pro- the cost judge hearing higher regard haps, for human life and bate for bail application cre- efficiency.” jurisdiction. physical ated no the value by consent, Jurisdiction cannot be created Ry. White, also, See, so that of Gas none Cent. was conferred the circuit so- probate judge hearing licitor’s consent 56 South. 175 Ala. capital in a bail case. op- the trial court had Thomas, dissenting. JJ., Somerville seeing observing portunity testifying witness, tiff while Alabama, Petition the State of on the position to wheth- determine in a better Attorney General, relation feigned real; condition was er mandamus, alternate wilt of directed to consideration of the evi- a careful after Troup, Judge L. P. Hon. as Probate record, just we find no reason dence Morgan county, require him to make an Watkins, Ray disturbing verdict. suspending judgment, admitting order and authorities Namie, Charley pending appeal bail one by questions fully are dealt Other there cited. with State, permitting State to opinion. original appeal judgment. take an from said Writ granted, rehearing therefore awarded. aside, judg- judgment set of reversal court is affirmed. circuit ment of the Petition that said shows Namie was'indict- degree for murder in the first ed spring SOMERVILLE, GARDNER, term, 1920, Morgan county THOM- cir- JJ., AS, court, concur. cuit and that had been a J., SAYRE, opinion applica- concurs as to Namie in the cause made mistrial law, probate judge of substantive but holds that the rules tion to admission to

Case Details

Case Name: Illinois Cent. R. Co. v. Johnston

Court Name: Supreme Court of Alabama

Date Published: Jun 30, 1920

Citation: 87 So. 866

Docket Number: 6 Div. 775.

Court Abbreviation: Ala.