73 So. 550 | Ala. | 1916
Lead Opinion
(l, 2) The circuit court of Franklin county. gave a judgment against the defendant in favor of plaintiff (appellee) on account of injuries alleged to have been received by him while in the defendant’s service. Before this suit was instituted in Alabama the plaintiff had commenced a suit for the same alleged wrong against the same defendant in one of the District Courts of the United States in the state of Georgia. This suit was still pending at the time the action in Alabama was called for trial. The defendant in our courts sought, through plea, the abatement of this action in the Alabama court because of the pendency of the action in the United States court in the state of Georgia. The mere pendency of a transitory action, for the same cause between the same parties in another sovereignty is not matter upon which to rest an abatement.—Humphries v. Dawson, 38 Ala. 204; Forrest v. Luddington, 68 Ala. 1, 16; M. & C. R. R. Co. v. Grayson, 88 Ala. 572, 578, 7 South. 122, 16 Am. St. Rep. 69; 1 C. J. § 113, pp. 84, 85. The plea was properly
“The decision in the Sowers Case [213 U. S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695], however, was not put upon the fact that the suit was based on a common-law liability. The court there announced the general rule that a transitory cause of action can be maintained in another state even though the statute creating the cause of action provides that the action must be brought in local domestic courts.”
Our statute law is to be regarded as not now embodying the stated restrictive provision. We have thus made reference to this matter because of the argument, stressed here for the appellant, that this plaintiff became an offender against Alabama’s authority by instituting his action outside of Alabama in face of its statutory declaration. Having brought.and prosecuted to effect his action in this state, there was' little, if any, occasion to consider the point; especially since the provision has been finally concluded to be without the force or effect it was intended to have. The court below correctly exercised the discretion reposed in it in declining, on that account, to suspend the action’s progress in that tribunal.
“The court, in response to the foregoing motion, required plaintiff either to give satisfactory bond to secure the costs of the action, dr, in lieu thereof, at plaintiff's option to make a cash deposit aggregating $50, defendant duly excepting to so much of said order as authorized plaintiff to relieve himself of the obligation to give security for costs by depositing said sum, and thereafter stated and offered to show to the court that the sum of $50 would not be adequate to reimburse defendant for its costs incurred or to be incurred in the premises.
“The court overruled defendant’s motion to require plaintiff to give a bond securing all costs or to give further security in the premises, defendant excepting.”
(3, 4) The course taken by the court was expressly authorized by Code, § 3688. Such matters, aside from the right of the defendant to have the costs secured, are largely within the discretion of the trial court.—First Nat. Bank v. Cheney, 120 Ala. 117, 23 South. 733. The amount the court required was fixed after inquiry. No witnesses having been subpoenaed by either party, and no showing being then made that subpoenas would be sought or needed for witnesses within this state, the amount of the deposit fixed by the court must be accepted as adequate. Under the applicable doctrine of Meinaka v. State, 55 Ala. 47, 57, 58, Harrison v. State, 78 Ala. 5, 11, and Shieffelin v. Schieffelin, 127 Ala. 14, 33, 28 South. 687, no error can be predicated of the remarks of the court in expressing the ruling on the motion to suspend the progress of the cause. Furthermore, if the delay in taking the exception is ignored, the court
(5) According to the bill of exceptions, there was no ruling of the court on the matter of the argument of plaintiff’s counsel, in response to the argument of defendant’s counsel, on the hearing of the motion to suspend this action because of the plaintiff’s suit in the state of Georgia. Hence there is nothing to revise. If, however, there had been a ruling, it seems quite clear that what plaintiff’s counsel said to the court, though in the hearing •of the jury, was not beyond the range of responsive argument.
The issues submitted were those predicated of the averments of counts 2 and 3. The report of this appeal will reproduce these counts. Under this pleading the plaintiff’s reliance for a recovery was placed upon a breach of duty within the fifth subdivision of our employers’ liability statute. — Code, § 3910. So far as presently important, the statute is as follows: “When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee, as if he were a stranger, and not engaged in such service or employment, in the cases following: * * *
“ (5) When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, electric motor, switch, car, or train upon a railway, or of any part of the track of a railway.”
As the plaintiff (appellee) asserts them, the circumstances attending his injury were these: Plaintiff was, when injured, actually engaged in the service of the defendant; this service required him to help “crank” a hand car operated by the defendant telegraph company, over the track of the Northern Alabama Railway Company, in the movement of the defendant’s employees and materials used by it in the maintenance and repair of its telegraph lines along the railway’s right of way; that one Wall was the foreman in charge and control of this hand car and of the employees on it; that within Wall’s functions was the operation of the brake on the hand car; that when the hand car, which was then running about 12 miles an hour, reached a point on the track whence there was a downgrade stretch of track at a time when plaintiff and others theretofore engaged in “cranking” the hand car had released their hold on the handlebar, an approaching train was discovered, and without notice or warning Wall
(6) It is insisted for appellant that the provisions of the fifth subdivision quoted can only apply “to protect employees of the owner or operator of the railway against the peculiar hazards of railroad operation, and has no application to the casual use by a licensee or other person of the track of a railway upon business not connected with the business of the owner or operator of the railway.”
The point taken has been considered with due regard to its importance and to the forceful argument with which counsel for appellant have undertaken to support it. The question is determinable, necessarily, upon the construction of the statute (Code, § 3910, subd. 5, quoted before). This feature of our statute establishes these elements and no others, in our opinion, as essential to its application or availability, viz: (a) The existence of the relation of master and servant between the defendant and the person for whose injury the action is brought; (b) the person, injured must have been engaged, when the injury occurred, in the discharge of duties under his employment; (c) his injury must have been proximately caused by the negligence of another person then in the service of the common master; (d) this other person, then in the service of the common master, must have had
In support of the contention before quoted from the brief of appellant, the following of our decisions are cited: K. C., M. & B. R. R. v. Crocker, 95 Ala. 412, 11 South. 262; Ala. S. & W. Co. v. Griffin, 149 Ala. 423, 42 South. 1034; Woodward Iron Co. v. Curl, 153 Ala. 215, 44 South. 969; Pear v. Cedar Creek Mill Co.,
The complaint is not subject.to the demurrer taking the objection that the complaint or either count thereof sought to avail of the provisions of the fifth subdivision when the facts averred failed to show that the defendant owned or was engaged in the business of operating a railroad at the time plaintiff was injured. These considerations and the conclusion stated justify the court in refusing the general affirmative charge requested on that theory for the defendant.
(7-10) Counts 2 and 3 were both deficient in omitting to aver that the foreman in charge or control of the hand car knew, or should have known, that plaintiff was then in a position where a sudden application of the brake would probably result in causing him to lose his balance and fall.—L. & N. R. R. Co. v. Bouldin, 110 Ala. 185, 200, 20 South. 325. “Negligence is ordinarily predicated in terms of knowledge” (Bruner v. Sellbach Ca., 133 Ky. 41, 117 S. W. 373, 19 Ann. Cas. 217, 219), or in the omission to perform a duty that, if performed with due diligence and care, would have afforded knowledge or given notice to the party alleged to be derelict. We find no ground of demurrer specifying, within the prescription of our statute (Code, § 5340), this particular objection to these counts. The eighth ground of the demurrer, which reads, “It is not averred or shown that said Wall knew that plaintiff had just stopped cranking said hand car,” did not serve the necessary purpose of specifying this particular objection. The plaintiff was not required, as the quoted ground assumed, to aver knowledge on the part-of Wall that plaintiff had ceased to crank the hand car, since a negligent breach of duty by Wall might have intervened and characterized Wall’s unannounced act in the circumstances as negligent if it had been alleged that Wall’s duty was to know or to exercise reasonable care to know the situation of plaintiff at the time — a situation likely to be converted from one of safety to one-of danger by Wall’s act in applying the brake as charged. However, there are
(11) There is no merit in the other grounds of the demurrer to counts 2 and 3. The averment that Wall was “in charge or control” of the hand car conformed in that respect to the provisions of the fifth subdivision of the statute. Both of the counts are in case, not in trespass, and hence do not undertake to join case and trespass in a single count. If the complaint had not had the three faults we have mentioned, it would not, in our opinion, be subject to demurrer. If, in fact, a sudden application of the brake, without warning to the employees on the hand car, was made by the foreman, and if this was necessary, because of the proximity of the approaching train, to seasonably stop and to remove the hand car from the track for the train’s uninterrupted passage, that was defensive matter, not matter essential to be initially negatived in the plaintiff’s pleading or in his evidence in chief.
In view of the retrial likely to occur, it is proper to say, on the evidence in this transcript, that the issues made by counts 2 and 3 and by the pleas of contributory negligence now in the record were due to be submitted to the jury for decision.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
Dissenting Opinion
(dissenting). — This cause is reversed solely upon the supposed insufficiency of the averments of counts 2 and 3, which counts are set out in the report of the case. The two grounds of objection are treated in the majority opinion under ■designations “(a)” and “(b).”
The ground of objection indicated as “(a)”-is that the counts fail to “unequivocally aver * * * the foreman’s duty, not alone his acts, with respect to the operation of the brake on the hand car,” etc. As to count 3, the plaintiff has simply followed the statute, charging the injuries to the negligence of one Wall, who had charge or control of the operation of the hand car. Clearly the above ground of objection can have no reference to this count, although the majority opinion seems to proceed on the theory that it does. As to count 2, it likewise concluded in the language of the statute, but, in addition, describes more in detail the negligence of said Wall, as in suddenly and without warning applying the brakes to the car, thus slackening the speed so abruptly as to throw plaintiff forward and off the car. The objection seems to be that, notwithstanding the averment of facts which clearly and unequivocally show that there rested on Wall the duty not to so negligently act as to thus seriously injure the plaintiff, this duty is not alleged in a formal manner; and upon such consideration the majority opinion would reverse the judgment. No authority is cited in support of this proposition; .and I feel safe in the assertion that none can be found, rendered in modern times, which would require such strict formality when the facts averred show the duty plainly and unmistakably. Indeed, I have always understood that pleadings are to be construed .•according to the facts alleged. Such is the holding of this court
Passing to ground of objection “(b),” it appears to be confined to count 2, which avers that at the time of the injury plaintiff was in the “employ of defendant in the active discharge of his duty as laborer or groundman, assisting in repairing * * * telegraph wires. * * * As a part of said repairing * * * defendant operated hand cars along the the track of said * * * railway, and was on said day operating a hand car for the purpose of carrying * * * employees as well as instruments, poles and wires, and at said time and place plaintiff, with other employees of defendant, * * * was riding on said hand car.” This count then alleges that it was the duty of plaintiff, along with other employees, to crank or propel said hand car, but goes on to recite that at the time of the alleged negligent conduct of Foreman Wall plaintiff had just stopped cranking the hand car. It is this last expression that “plaintiff had just stopped cranking said hand car” which is held in the majority opinion to be fatal to the count, and this upon the .theory that it is contradictory of the averment that at the time of the injury plaintiff “was in the discharge of his duty.”
If this is sound reasoning, and the evidence should disclose that at the time of the accident plaintiff had just ceased cranking the car, he would not be entitled to recover. This would necessarily follow as a logical conclusion. The same reasoning would deny recovery for damages to the coal miner injured by some actionable negligence while in the mine, if it appeared that at the time of his' injury his pick had momentarily rested by his side and was not at that very instant in actual use.
But the court does not hold that, if plaintiff was not engaged in cranking the car at the very moment of the accident, he could not recover. No such proposition is announced, and clearly the court holds the very contrary. The evidence of plaintiff himself discloses that at the time of his injury he was not cranking the car, nor were the others, for the reason that the car was going down a rather steep grade and had sufficient momentum without being propelled.
The opinion expressly states that the issues under counts 2 and 3 are for the jury’s determination, and this notwithstanding the fact that plaintiff testified he was standing idle on the car,,
To hold that the expression in the count “defendant was not at the time cranking the car” is fatal to its sufficiency brings us inevitably to this situation: A case is presented where the plaintiff alleges in his complaint a fact which he testifies is the absolute truth, and which the court holds does not bar him of a right of recovery nor materialy affect his case; and yet the court at the same time says to the plaintiff that, because he did not allege this harmless truth in the second count of his complaint, the count is insufficient, and the judgment must be reversed. I respectfully submit that this presents an anomalous situation, a parallel of which I believe a search of the authorities will fail to disclose. The mere statement, of the proposition should suffice for its refutation. The plaintiff was very seriously hurt, and his evidence tends to show that he has suffered permanent injuries.
All the meritorious questions arising on this trial are shown by this opinion to have been decided adversely to the appellant, and the record shows that the material issues were properly and fairly submitted to the jury’s determination. The only error found in the record by the majority consists in the two questions above discussed as to counts 2 and 3. These counts speak for themselves, and to my mind appear to have been carefully prepared.
For my Brothers of the majority I have, of course, the highest respect and regard, but I have felt it my duty, in the exercise of a constitutional right, to record my earnest dissent, thus briefly stated, from the reversal of the cause upon such grounds, firmly believing, as I do, that this decision marks a decided step backward in the administration of justice.