54 So. 681 | Ala. | 1910
Since the ruling in O’Kief v. M. & C. R. Co.,99 Ala.524,12 South.454,it has been established that the general statute of limitation of one year applies to bar a recovery for injury resulting in death, where the action is brought by the personal representative of the servant against the master under the employer’s liabilities statute (Code 1907, §§3910-3918). The two readoptions of the pertinent statutes, including the general limitation put upon actions for general injuries, without change important in this regard, remove the possible inquiry first presented in O’Kief v. M. & C. R. Co. from further investigation. The question is settled as the statutes stand. Where, however, the canse of action declared on by the personal representative is not set forth under the employer’s liability statute, but is drawn under the homicide act (Code 1907 §§ 2486), two years “from and after the death of the testator or intestate,” by express provision of the homicide act, is the period within which the action must be commenced. This period of two years is of the essence of the newly by the statute conferred right of action, and the plaintiff has the burden of affirmatively showing that his action was commenced within the period provided. It is not a limitation against the exercise of the remedy only. Tiffany’s Death by Wrongful Act.§ 121; Rodman v. Mo. Pac. Ry. Co., 65 Kan. 645, 70 Pac. 642, 59 L. R. A. 704, 706, 707; The Harrisburg, 119 U. S. 199, 214, 7 Sup. Ct. 140, 30 L. Ed. 358; 8 Am. & Eng. Ency. Law, p. 875; 13 Cyc. p. 339. Accordingly the general statute of limitation of one year against actions for personal injuries though resulting fatally is entirely inapt when sought
Unless tbe evidence upon tbe issue whether tbe injured employe was in tbe service at tbe time of bis injury is one way or tbe other conclusively in point of fact or
Count 4 as last amended stated a cause of action under the homicide act. It was introduced, by amend-: ment, within the two years prescribed by that act. The evidence fixed the date of the death of intestate within that period before count 4 was filed. Under the practice and rule established in Alabama Con. C. & I. Co. v. Heald, 154 Ala. 580, 45 South. 686, the amendment, wrought by the introduction of count 4, was properly allowed. A general traverse of amended count 4 urns interposed, thereby without special plea putting in issue the inquiry whether intestate’s fatal injury was proxirnately caused by the negligent act or omission of a fel
It is insisted fob appellant that the affirmative charge was its due on the theory that the evidence showed that the handling of intestate on the occasion by the watchman was not the proximate cause of his death. There was evidence tending to show that this handling of intestate caused the parting of the casing of the bowels at a place or places where previously a surgical operation had been performed. If the violent treatment alleged to have been received,- on this occasion, by the intestate, had the effect to cause his death, or accelerate his dissolution as a consequence of the earlier surgical opera
Southworth v. Shea, 131 Ala. 419 30 South, 774, cited for appellant, has no application in this instance because of the marked dissimilarity in the evidence in each. For like reason, those special charges, requested by defendant, wherein it was hypothesized, in substance, that plaintiff could not recover unless the violence charged was the sole cause of intestate’s death, or omitting to exclude, in hypothesis, the idea, supported by the tendencies of the evidence, that the violence received by intestate proximately contributed to his death, were properly refused.
The court, at defendant’s request, gave many special instructions confining the plaintiff’s right to recover within limits of utmost favor to defendant as regarded the question of proximate cause of intestate’s death. It was competent as bearing upon the issue of the scope of Jones’ authority — a matter resting in parol — to show previous acts by him in that capacity reasonably related in point of time to that involved in this action. — Robinson v. Green, 148 Ala. 434, 43 South. 797; Birmingham Min. R. R. Co. v. T. C. & I. R. R. Co., 127 Ala. 137, 28 South. 679. There was no error in the rulings made by the court in reference to such matter on the trial below. A careful review of the charges refused to the defendant in connection with those given at its instance leaves no room for doubt that no error, prejudicial to defendant, resulted from the refusal of such charges. There is no insistence in brief upon error in overruling the motion for a new trial.
Affirmed.