Louisville & Nashville Railroad v. Chamblee
54 So. 681
Ala.
1910
Check Treatment
McCLELLAN, J.

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 *193to be pleaded to an action under the homicide act. Where the injury, resulting in death, is to the servant while engaged in the service of the master, his personal representative may rest his action upon the right and remedy provided by the homicide act; but, when he does so, the right to recover must he determined by the common law rules, without reference *to or reliance upon the employer’s liability act.—Northern Alabama R. Co. v. Mansell, 138 Ala. 548, 560, 561, 36 South. 459. In such case the servant’s personal representative cannot recover if the injury resulting in the servant’s death was proximately caused by the negligent conduct or ornmission of a properly selected or retained fellow servant; since at common law the injured servant assumes on entering the employment the risk of injury from the negligence of such a fellow servant.—Northern Alabama Railway Company v. Mansell, supra. If the fatally injured employe was not when injured in the service of the defending master, then obviously the co-employe, where negligent conduct or omission caused his death, could not have been the fellow servant of the fatally injured employe, whatever else may have been the relation of such derelict coemploye to the common employer, and hOAvever otherwise the wrong or negligence of the derelict coemploye may have been imputable to the employer. When, under all circumstances, an employe is in the service of the employer, is not susceptible, Ave think, of reduction to general, governing rule. From a full and careful revieAV of many authorities, it can be said, with a satisfactory degree of assurance of soundness, that actual application of the energy or attention of the employe to the specified duties designated for his performance is not invariably essential to subject the employer and employe to the rules of law, arid to the consequences wrought out by the-rules of law, applic*194able to tbe determination of tbe rights and liabilities, respectively, of tbe employe and of tbe employer where tbe former suffers injury while actually applying bis energy or attention to tbe service stipulated or required by tbe employer for bis performance. This conclusion has been attained in consequence of tbe very generally accepted view prevailing, and upon sound reason, we think, with a large number of courts of this country, in cases where tbe injured employe was going to or from tbe place of bis employment, or where bis actual service bad been suspended during tbe work day or night, and tbe question was in many of tbe cases, whether tbe cause of tbe injury was tbe negligent conduct or omission of a properly selected or retained fellow servant, tbe risk of injury from tbe negligent conduct or omission tbe injured coemploye having at common law assumed. Among tbe sources of legal information consulted on this subject were 2 Labatt on Master & Servant, §§ 624, 625, 625a, and copious annotations thereto; 2 Bailey on Master & Servants, § 3208 et seq., and notes thereto. In addition to these, reference may be bad to Pioneer Mining Co. v. Talley, 152 Ala. 162, 43 South. 800, 12 L. R. A. (N. S.) 861; Washburn v. N. C. & St. L. Ry., 3 Head (Tenn.) 638, 75 Am. Dec. 784; L. & N. R. R. Co. v. Wade, 46 Fla. 197, 35 South. 863. It will be seen from tbe decisions delivered, and to which we refer above that each case has suggested to tbe judical mind dealing with it the solution either by pronouncement upon tbe undisputed facts as a matter of law or by tbe affirmation that tbe issue was or was not as tbe case was properly submitted to tbe jury for their determination.

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 *195from necessary inference from facts and circumstances shown, its determination is for the jury. Packet Co. v. McCue 17 Wall.508, 514; 21 L. Ed. 705; Walbert v. Trexier, 156 Pa. 112, 27 Atl. 65. In the former case, McC'ue, a laborer, was employed to assist in loading a steamer. After fully performing the specific duties for which he was engaged, McOue went, as directed, on the vessel to get his compensation therefor. After being paid, he started over the gangway plank. It was pulled in by men on the vessel, and he was thrown against the dock and injured. It was insisted for the company that Mc-Oue’s injury was caused by his fellow servants. The Supreme Court, Justice Davis writing, ruled that the inquiry whether McCue’s emplowment had terminated when he was injured as stated was properly submitted to the jury, the concession, in argument, being that, if it had terminated, the company was liable, since the exemption from liability because of common employment did not then prevail; and affirmed the judgment for the plaintiff. The latter decision involved a status of fact and circumstance somewhat similar to that presented by the case at bar. The defendants, the Trexiers, were manufacturers of staves, and Walbert was in their employ; his work being that of a jointer of staves under an open shed. His machine for that service was operated with his foot. He had no connection, in the employment, with the engine or the boiler. An explosion, caused, it was claimed, by a leak in the boiler, resulted in his death. This took place between 6:06 and 6:20 a. m. The hour for deceased to begin work was 6:30 a. m. According to the evidence, deceased was in the boiler room, or bn the threshold of its door, when killed, and it was farther shown that he had been in the habit of grinding the knife, with which he worked, on a stone in the *196boiler room. It was insisted for appellants that the employer’s liability did not begin until the employe’s service had actually begun. The court ruled to the contrary, holding that the issue under the evidence was for the jury. While the cases are not identical in point of fact, the following expressions of the learned court, Justice Mitchell writing, seem to be especially applicable to the case at bar: “While the appellants’ contention that the employers’' liability does not begin until the employe’s service has actually begun is in general entirely sound, yet the rule cannot be held absolutely to the stroke of the clock. The deceased lived a mile away from the works. In strict law he was bound to be there when the whistle blew, and he was entitled to a reasonable margin in arriving so as not to be late. * * * The learned judge told the jury that the employer owed no duty to one .who came at an unreasonable hour, and, if Walbert came an hour or two before his time and sat around with other people, he was not in line of his' duty, but declined to say as matter of law that such was the case here, and left that fact under all of the evidence to the jury. In this he was right.”

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*197low servant of intestate; and, if so, the plaintiff could not prevail, for risk of injury, with the limitation before stated, from that source intestate at common law assumed.—Northern Ala. Ry. Co. v. Mansell, 138 Ala. 548, 561, 36 South. 459, treating plea 5 to the complaint in that cause. In accord with Northern Ala. Ry. Co. v. Mansell, on this point, viz., that the exemption of the common employer from liability for an injury to an employe caused by the negligent act or omission of a co-employe need not be specially pleaded, are the following authorities: Wilson v. Charleston & S. Ry. Co., 51 S. C. 79, 28 S. E. 91; Cin., N. O. & T. P. Ry. Co. v. Lewellen (Ky.) 32 S. W. 958; Sheehan v. Prosser, 55 Mo. App. 569, 575; Kaminski v. Tudor Iron Works, 167 Mo. 462, 470, 471, 67 S. W. 221; Wiggins Ferry Co. v. Blakeman, 54 Ill. 201; Sayward v. Carlson, 1 Wash. St. 29, 39, 40, 23 Pac. 803. Beference to 26 Cyc. p. 1402, and to 13 Ency. PI. & Pr. p. 413 will show that a different view has prevailed with other tribunals than those delivering the decisions cited above. One of the cases of the opposing line of decisions is Duff v. Willamette Steel Works, 45 Or. 479, 78 Pac. 363, 668, Avliere the question is elaborately considered. The ruling in this particular made in Northern Ala. Ry. Co. v. Mansell, supra, is rested on sounder reason, and is we think undoubtedly correct. The affirmative charge, requested by defendant, could not, as appears, have been properly given on the theory that the limitation of one year barred the cause of action declared on in count 4 as last amended. Nor could it have been properly given for defendant on the theory that the watchman — a coemploye of intestate — inflicting the alleged fatal injury was then a fellow servant of intestate, the risk of injury from whom intestate assumed under the common-law doctrine.

*198Omitting reference to other possible considerations affecting the inquiry, whether such was when the alleged injury occurred the relation existing between intestate and the watchman (see Ga. Pac. Ry. Co. v. Davis, 92 Ala. 300, 312, 313, 9 South. 252, 25 Am. St. Rep. 47, defining who are fellow servants), it is apparent from the evidence in this transcript that it could not be declared to the jury as matter of law that when injured or just prior thereto intestate was in the service of the defendant, in such sense as invested him and the defendant with the rights duties, and liabilities usually prevailing as between master and servant. There was evidence tending to show that the injury was inflicted about 4 o’clock — more than an hour before his duties actually began. There was evidence immediately opposed to that just stated. If intestate was upon the premises at an unreasonably early hour for readiness for his actual service, or was there at a time not reasonably referable to preparation to take up his actual duties, and then suffered injury, it was open to the jury to find that he was not in the service of the defendant; and hence was not, in any event, then relationed as a fellow servant io the watchman.

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*199tion, the defendant, if shown otherwise to be liable, could not claim exemption from the result of its employe’s (watchman’s) act in the course of his service to it. L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 South. 902; Thompson v. L. & N. R. R. Co., 91 Ala. 496, 8 South. 406, 11 L. R. A. 146.

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.

*200No prejudicial error appearing in the transcript, the judgment is affirmed.

Affirmed.

Dowdell, G. J., and Simpson and Mayfield, JJ., concur.