55 So. 821 | Ala. | 1911
Lead Opinion
This is an action by the appellant eleventh section of said act provides that defendants the plaintiff while working as a carpenter on the furnace plant of defendant.
The first assignment of error insisted on, is to the action of the court in refusing to strike defendant’s pleas 3, 4, 5, and 6, the contention being that said pleas were not filed within the time prescribed by the special act under which said Tuscaloosa county law and equity court was established. — Acts ■ 1896-97, p. 262. The eleventh section of said act provides that defendants shall appear and demur or plead to the complaint within 30 days after service, and- authorizes judgment by default, on motion of plaintiff, at any time thereafter. The complaint was filed February 14, 1910, and served February 16, 1910, demurrer filed May 20, 1910, and said pleas were filed June 6 and 7, 1910. In the meantime no motion was made for a judgment by default. Said section of said act prescribes terms upon which pleas may be filed after judgment by default, but makes no special requirements as to terms on filing pleadings after the 30 days and before default claimed. There was no error in refusing to strike said pleas.
There was no error in sustaining the objection to the questions as to the cause of the reduction of plaintiff’s wages, as the questions called for the opinion of the witness, and should have asked for facts, leaving it to the jury to determine why the wages were reduced.
The plaintiff, as a carpenter, was working under the orders of Mack Powell, to whose orders he was bound to conform; and did conform. The dust box is cylindrical in shape, from 10 to 18 feet in diameter, and 20 feet or more in length, large enough for men tO' walk inside. The dust was transmitted from the furnace above, down into said dust box, through large pipelike passageways called “down comers,” which are large
While the plaintiff was in the performance of his general duties, he and his squad were ordered by said Powell to go into said dust box and tear out the scaffolding or lagging, there then being one or more electric lights furnishing sufficient light to work in said dust box. On the next morning, when plaintiff went into said dust box to continue said work, he discovered that there was no electric lamp or bulb therein, and he came out and reported the fact to said Powell, stating that he did not like to go in and work in the dark while the brick masons were working above, in the “down cornier,” for fear that something might fall on him; and said Powell ordered him to go back to work, stating that they could not.wait for the electrician to put lights in. Plaintiff, in obedience to orders, then went back, and when he had passed one piece of lumber through the bootleg below, a piece of lumber, with an eight or ten penny nail protruding from the end thereof, fell from some point above and struck plaintiff on the head, causing the injury complained of. Plaintiff could not see said plank, nor how to protect himself therefrom, nor where it came from.
There was no error in the action of the court in sustaining the m'otion to exclude the evidence of the plaintiff, and giving the general charge in favor of the defendant. This being the case, it is unnecessary to notice exceptions to rulings on the pleadings.
The judgment of the court is affirmed.
Affirmed.
Rehearing
On Rehearing.
The majority of the court, consisting of Anderson, McClellan, Mayfield, and Somerville, "JJ., hold that the evidence was sufficient to leave it to the jury to say whether or not the injury resulted from the negligence of Mack Powell. The writer’s views, concurred in by Sayre, J., are as follows:
It is claimed on application for rehearing that the failure to have the light renewed was not the only neg
There is not a particle of evidence tending to show that the order was negligent, unless because the light was out; that was the reason given by the plaintiff when he objected to work, and that is the only reason suggested in the plaintiff’s brief either on the original hearing or on this rehearing. There is no evidence as to where or how the “down comer” enters the dust box, whether into the top, where the explosion doors were, or into the side. There is no evidence that any one was in the “down comers,” or that there was any scaffold therein; the only evidence about any scaffold being the testimony of plaintiff that the carpenters had erected “a scaffold” in the dust box.
Said fifth count alleges that said Powell “did negligently order the plaintiff to work in the place and in the manner, in which he was then engaged,” etc.; and
This court has frequently held that where the general charge is properly-given, or where the party is entitled to the general charge, it is not necessary to consider other matters. ' •
The rehearing is granted; and the judgment of the court is reversed and the cause remanded.
Concurrence Opinion
I concur in granting this application for a rehearing, and in reversing the judgment of the trial court, upon the ground that there was sufficient evidence to carry the case to the jury upon one of the counts; but I am of the opinion that the case should be reversed upon an entirely different ground.
The court, on defendant’s motion and over the objection of plaintiff, excluded all of the plaintiff’s evidence from consideration by the jury. This was undoubtedly error. No trial court can refuse to admit, or can exclude, over the objection of a party, such evidence as is shown by this record, without committing error. The error may be cured by subsequently admitting the evidence; or if the error be without possible injury to the party complaining, it is not, therefore, error to reverse
I am aware that such a practice has in recent years grown up in this state, and is often resorted to hy defendants in the trial of civil cases, .and is practiced hy many of the ablest and most eminent counsel in the state, and that it is allowed hy. many of the most learned and experienced trial judges, and that it, has been allowed by this court in a number of cases; but it' has never been approved further than by the failure to prohibit it, and has been one pr more times criticised and adversely.
The. practice has sometimes been said by this court not to be error, and at other times, to be error without injury. When it was said not to he error, of course, the court m'eant, not reversible error in that particular case. It is of course error, and necessarily so, technically speaking.
The rule is firmly settled in this state that, error being shown, injury is presumed. Appellate courts will indulge all reasonable intendments and presumptions to save the trial court from error; but they never make any such intendments or presumptions as to injury. On the other hand the presumption is the other way as to injury. An appellant never has to show injury in order to obtain a reversal; if he shows error, injury is presumed, unless the contrary is made to appear clearly and affirmatively. In other words, on appeal, the burden is on the appellant as to error, but on the appellee as to injury. To illustrate these two rules, let them he applied to the facts of this case as shown on the appeal by the transcript:
Suppose the trial court had declined to exclude the evidence, but had given the affirmative charge for the
The burden is on the appellee to show that the error Avas harmless, and if he does not discharge this burden the case must be reversed. This burden is not discharged in this case. It does not appear that it was all the evidence, nor otherwise that it Avas harmless. But I do not mean to say that it would not be reversible error if it Avas shown that it Avas all the evidence, and it did not make out a prima facie case for plaintiff. If competent and relevant, and tending to prove any issue on trial, it cannot be excluded over the objection of either party without the commission of reversible error. It is reversible error because the statutes of this state have provided the modes by which the court, instead of the jury, may test the sufficiency of the plaintiff’s evidence to support the verdict, and these modes established by statute are exclusive of other modes which deprive the parties of advantages secured by the statutory mode. Either party has the right to have it tested by these modes, and no other can be resorted to unless by consent.
Courts certainly have no more power or authority to establish, sanction, or allow a practice or procedure
At an early date, to wit, June, 1822, it was decided by this court, that the trial court, unless so directed by statute, could not order a nonsuit. In that case it was said: “If the evidence shows a claim irrelevant to the form of action, or to the issue, it is competent for the court to so instruct the jury; but if the plaintiff appears, and refuses to submit to the nonsuit, and insists that the jury shall render a verdict, the court has no power to direct a nonsuit, and cannot enforce its opinion, except by instructing the jury, and awarding a new trial.” — Smith v. Seaton, Minor, 75. This language of' the court Avas quoted and reaffirmed in the case of Hunt v. Stewart, 7 Ala. 528. In that case it was said: “It is clear from Avhat is already said that he (plaintiff) failed to make out his case, and the court would have been authorized to instruct the jury to find against him, and the jury could not without a disregard or misapprehension of duty, refuse to do so. This being the case*, the plaintiff is not prejudiced, and if the point was reS' integra, we might be inclined to consider the nonsuit as a. mere irregularity which did not avail on error; but it was held by our predecessors at a very early date that; it was not allowable for a court, unless directed by statute, to order the plaintiff to be nonsuited. * * * The plaintiff insists upon a verdict whenever he puts his case before a jury, and does not consent to a Avithdrawal. Upon the authority of the case last cited, the judgment is reversed and the cause remanded.” These cases have been subsequently followed, and never departed from, and the statutes, which the courts then held did not allow it, remain to this day, and have been
The practice of excluding all the plaintiff’s evidence, or all of that of both parties, is nothing more nor less than the court’s declining to submit it to the Jury with instructions; and this, the statutes of this state do not authorize, while the decisions of this court have, held that the trial court could not so decline, in the absence of statutory authorization. On the other hand, it is the purpose and effect of the statute to expressly declare that the plaintiff has, in such case, the absolute right to insist upon a verdict under such conditions, when he puts his case to the jury, and that he does not consent to a withdrawal of his evidence; and the court cannot compel him to withdraw it, though it be authorized to instruct the Jury to find against him on it, and to set aside the verdict if they fail to obey. It is futile to say that the practice of excluding all the evidence, and then charging the Jury that if they believe the evidence they must find for the defendant, is not a nonsuit. This is nothing short of an attempt to avoid' the statutes as to nonsuits, and to make the Judgment a bar to another suit, which would not have that effect if a nonsuit was entered. To exclude a plaintiff’s evidence when he insists that it is sufficient to go to the Jury on, as tending to prove the issue made, is nothing more nor less than compelling the plaintiff to take a nonsuit.
It is a farcical comedy to allow or compel parties to go to the Jury after the evidence is all excluded. There is nothing for the Jury to consider, nothing for them to believe or not believe; the only thing to do is to enter up a Judgment for the defendant; but it is a Judgment of nonsuit, or nol pros., and not a Judgment final based on the verdict of the Jury (the Jury have nothing to
Of course it is not error for the court to give the affirmative charge for the defendant after the evidence is excluded, the burden of proof being upon the plaintiff. It is really nonsense to request or give such instructions to the jury. If the plaintiff has anything to corniplain of in this practice, it is the action of the court in excluding his evidence; and this is nothing more nor less than the court’s directing, if not compelling, him to take a nonsuit, which is exactly what the statutes are ■intended to prevent the trial court from doing, and which this court has said it could not do without committing error, though,, under the same state of facts, it might direct a verdict.
In the case of Leavitt v. Dawson, 4 Ala. 335, the court, in speaking of compulsory nonsuit, said: “It is not important to consider whether the term ‘nonsuit’ is the most proper to designate this mode of action by the court, because the effect to the plaintiffs is the same as a judgment of nol pros., which is the technical judgment in all cases where the plaintiff refuses to proceed further with his suit.” And in that case it was held error to enter a nonsuit, and that the plaintiff could not have been presumed to have consented to a nonsuit.
• A plaintiff .may, of course, at any time, voluntarily nonsuit, and then bring another action, provided he pay the cost'of the first suit; but he can have this ruling re
A nonsuit, even upon the merits of a case, is not necessarily a bar to' another action for the same cause, except in a few cases, as stated in Co. Lit. 139a. This is the difference between a nonsuit and a retraxit; the latter is a bar, but the former is not. In England the practice was that if the judge ordered a nonsuit, and the plaintiff brought another suit, the trial court would stay the proceedings upon the second action until the cost Of the first was paid, the second action being deemed vexatious; yet, the party could not be deprived of his second action if he submitted to the condition of paying the costs which accrued upon the first suit. This is the uniform practice in most of the states. — Bridge v. Summer, 1 Pick. (Mass.) 371.
We have thus far shown the rights of which the plaintiff is deprived, and will now sIioav the rights conferred upon the defendant by this practice, Avhich are in addition to those conferred upon him by statute, or other law, and without subjecting him to any of the penalties which he would incur by pursuing the remedy given him by statute, when he desires to test the sufficiency of the plaintiff’s evidence to support a judgment.
Our statutes have from an early period provided two methods by which a defendant could have this question determined by the court, instead of having the effect of the evidence determined by the jury. The first is a demurrer to the evidence; and the other, by requesting the court to charge the jury that they find for the defendant, or, that they cannot find for the plaintiff. In each of these methods the defendant is required by the law to take the chance of a judgment being entered against him. If he merely requests the court to exclude the evidence, he takes no risk — cannot possibly incur any penalty. If the court grants his motion, then, as a matter
The statute has adopted the renpedy of demurring to the evidence hut not that of involuntary nonsuit. This gives him the right to have the evidence made of record by the court, and by admitting every inference or conclusion which the jury can legally deduce therefrom. He thereby devolves upon the court, instead of on the jury, the duty of determining the issue of fact between the parties, as Avell as of law. This was the effect of the demurrer to the evidence at common law, and our statute has copied the words announcing the effect, purpose and object of demurrer to the evidence. — See section 5343 of the Code. But in order to do this — that is, to place the duty upon the court to determine this issue —he must take the chance of the court’s entering a judgment against him, as well as one against the plaintiff. He therefore clearly avoids and evades this statute when he is allowed to have the plaintiff’s evidence ex- . eluded and thereby obtains an involuntary nonsuit.
To sum it all up in a few words, the practice of excluding the plaintiff’s evidence is an unauthorized and unwarranted one, the effect of which is to avoid and evade the statutes provided for such cases. It deprives the plaintiff of the rights conferred upon him by statute, and confers upon the defendant rights which are prohibited by statute. It therefore follows that such practice ought not to be sanctioned or allowed by the courts of this state. I do not doubt that such practice is allowable in those states in which involuntary ‘ non-suit is allowed, because that is what excluding the plaintiff’s evidence amounts to. The two are one and the same thing in practice and in legal effect; but, as
The state of Missouri has a system of pleading and practice very similar to that of Alabama, and the Supreme Court of that state nipped this practice in the bud when it was first attempted there, in the following-language: “There is no law in this state authorizing the court, at the close of the plaintiff’s case, to strike out his- testimony on the ground that the same is insufficient to make out a case for the plaintiff.” — McFarland v. Bellows, 49 Mo. 311.
The Supreme Court of West Virginia, in speaking of the practice which had been allowed to prevail in that state, said: “Looking to the manner in which this practice has been abused in some of the circuit courts of this state, I cannot refrain from expressing the regret that when it first made its appearance here, it was not met with the declaration which was made by the Supreme Court of Missouri.” — Carrico v. W. Va., C. & P. R. Co.., 35 W. Va. 395, 14 S. E. 14. That court, in the same case, said that it had been unable to find any case in the reports of the mother state, -Virginia, which would be authority for the practice in West Virginia, and that the court was constrained to believe that the practice was an importation from other states, which had been ingrafted upon its procedure in a manner not entirely in accordance with the spirit of its former decisions. This is certainly true in this state, and, it may be added, it is in direct conflict with the early decisions and contrary to express Code provisions which have prevailed in this state for many years. But the West Virginia court proceeds to show that, although the practice prevails in that state, it is limited to cases, first, where all
I believe it will be found upon an examination that the practice has never been allowed- to prevail to any great extent except in the states in which an involuntary nonsuit was allowed' when the plaintiff had failed to prove his case, because it would be a non sequitur to say that the right to compel a nonsuit does not exist, and yet allow the court to exclude all the plaintiff’s evidence when he insisted upon the right to go to the jury upon that question.
As I have before stated, I do not believe that the courts of this state have the power to authorize, sanction, or give effect to any such practice, because the Legislature had provided a procedure for such cases, and the litigants have a right to have that procedure complied with, and it is the duty of the courts to enforce it.
It may be said, and it is possibly true, that when the court excludes the plaintiff’s evidence on the defendant’s motion, the plaintiff might then take a nonsuit, with a bill of exceptions, .because the ruling is adverse to him; but the answer to that is that the law does not require him to do this; and because the defendant and the court have resorted to an unwarranted practice, they cannot escape their error, nor be. excused therefrom, because the plaintiff did not resort to some other remedy. The law gives him the option in that instance, and not to- the court or the defendant.
As I have pointed out before, though he may not have made out his case, yet, if he thought he had, he had a right to submit that question to the jury unless the defendant demurred to the evidence, or requested the af
If the defendant desires to submit the sufficiency of the evidence to the court instead of to the jury, the statutes have pointed out to him, how he shall do it, and have given him the option of two remedies; one, by demurring to the evidence; and the other, by requested charges or instructions from the court. The court has no poiver to allow him to select some other mode, and thereby escape the burdens which the statutes impose upon him in the event he decides to have the court, instead of the jury, pass upon the sufficiency of the plaintiff’s evidence.
Concurrence Opinion
I concur in the conclusions of my Brother Mayfield, first, that the exclusion, on motion, of all of a plaintiff’s evidence is error, and presumptively injurious; but that the latter may be and is refuted, and reversible error averted, if the entire evidence so excluded did not make out a prima facie case for the plaintiff; and, second, that the practice of excluding, on motion, the entire evidence of the plaintiff, on the asserted ground of its insufficiency to sustain, prima facie, the plaintiff’s case, is fundamentally wrong and ought not to be longer sanctioned. The movant, in such case, should be put to his right to demur to the evidence, or relegated to his other right to test the question by special written charge.