Sloss-Sheffield Steel & Iron Co. v. Vinzant

44 So. 1015 | Ala. | 1907

SIMPSON, J.

— This was an action for damages, brought by the appellee against the appellant, on account of injuries to J. M. Yinzant, the minor son of the plaintiff. The first and second counts were eliminated, by motion to strike and demurrers sustained, and tbe trial proceeded on the third and fourth counts. The count third alleges that the defendant, and the fourth that defendant’s servants, employed plaintiff’s said son wrongfully and without plaintiff’s consent, and that while so employed his said son received the injury complained of. The assignments of error do not raise any question as to the sufficiency of the complaint or the pleas. The first plea is the general issue, and the second that the “supposed causes of action in-said counts mentioned did not, nor did either of them, accrue at any time within one year next before the filing of said counts. * * *” Defendant pleads the statute of limitations of one year.

The first assignment of error insisted on is to the action of the court in overruling the defendant’s objection to the question to the plaintiff, as a witness, “What ivas the reasonable cost of the lodging, boarding, and clothing of your son, since he returned home, and since his injury?” and also in overruling defendant’s motion to exclude the answer thereto. If the parent is entitled to recover in this case, the measure of his damages is the loss of the« services of the- son, to which could be added any extra expenses in the care and cure of his son, resulting from the injury; but the lodging, boarding, and clothing of his son are but the ordinary expenses for which the parent is responsible, irrespective of the injury. Consequently, it was error to permit the proof of the cost of the performance of these duties to the parent. In addition, there is no claim in either count for this.

As to the overruling of the motion to exclude the testimony of the defendant as to the “spells” of fainting by his son, it is needless to pass upon the question as to whether the question should have been objected to. It is sufficient to say that, if objection be made seasonably and properly, such testimony should not be admitted, unless there is evidence showing some causal connection with the injury.

It will be observed that the defendant did not plead the statute of limitations in Code form, but alleged that the cause of action did not accrue at any time within one year nest before the filing of the counts, and that the plaintiff did not question the sufficiency of said plea, but took issue on the same. It was clearly proved that the cause of action accrued more than a year before the filing of said counts. Hence, though the issue may have been an immaterial one, the plea being proved, the defendant ivas entitled to the general charge. The court erred in refusing to give the same on request of the defendant. — McGhee & Fink v. Reynolds, 117 Ala. 413, 23 South. 68; Taylor v. Smith, 104 Ala. 538, 16 South. 629; Nashville, C. & St. L. Ry. v. Hill, 146 Ala. 240, 40 South. 612.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Anderson and Denson, JJ., concur.