Opinion
8 Div. 929.
May 24, 1917.
Appeal from Circuit Court, Madison County; R. C. Brickell, Judge.
Cooper Cooper, of Huntsville, for appellant. R. E. Smith, of Huntsville, for appellee.
This is the second appeal in this cause. See decision of first appeal reported in 194 Ala. 317, 69 So. 960.
The facts and issues on this appeal are so nearly identical with those passed upon on the former appeal that the summary of the complaint and cause of action noted in the first opinion is applicable here. The several counts were practically and in effect the same in averment. The suit was to recover damages for personal injuries to plaintiff's minor son; the gravamen of the action being that defendant employed plaintiff's son in a dangerous business, without plaintiff's consent. Defendant originally filed demurrers to the complaint, of dates October 13 and November 18, 1914. The judgment entry (of date February 15, 1916) recites:
"Plaintiff amends count 2 by striking out the words, 'causing him intense suffering resulting in his permanent injury,' whereupon defendant withdraws demurrers and pleas heretofore filed, and files demurrers to the complaint, which demurrers being considered and understood by the court, are by the court overruled and disallowed. Whereupon defendant files pleas," etc.
There is nothing in the record to show what the demurrers were, which were last filed to the complaint and were overruled by the court. The record also fails to disclose whether either or both of the demurrers originally filed to the complaint were refiled, and were the demurrers that were overruled by the court as recited in the judgment entry. We have, however, examined the first, third, and fourth counts of the complaint, and conclude that they were not subject to the demurrer originally filed thereto.
The court committed no error, as shown by this record, in striking pleas Nos. 2 and 3. The record discloses that pleas 2 and 3 were filed March 18, 1914, whereas the judgment entry on second trial recites that "pleas heretofore filed" were withdrawn. No other pleas appear thereafter to have been filed, except by the recital in the judgment entry as follows:
"Whereupon defendant files pleas 1, 2, and 3, and plaintiff moves the court to strike 2 and 3, which motion is granted by the court."
The action of the court in striking these pleas is not presented by bill of exceptions. Weller Sons v. Rensford, 185 Ala. 333, 64 So. 366; Lynn v. Bean, 141 Ala. 236, 37 So. 515. This ruling appears only by the foregoing recitals of the judgment entry. It is not shown by a motion in writing, nor as a part of the record, as provided in the act of September 18, 1915 (Gen. Acts 1915, p. 598).
If the defendant relied upon any of the pleas theretofore withdrawn, they should have been refiled. L. N. R. R. Co. v. Wood, 105 Ala. 561, 17 So. 41; B. R. L. P. Co. v. Fox, 174 Ala. 657, 668, 56 So. 1013; C. of G. Ry. Co. v. Ashley, 160 Ala. 580, 49 So. 388; Syson Timber Co. v. Dickens, 146 Ala. 471, 40 So. 753. Nothing is presented for review by the ruling of the court.
However, the sufficiency of a plea should be tested by demurrer. Thus are its defects pointed out, and opportunity given for amendment. This right a defendant is denied by a motion to strike. We cannot say however, in the absence of the pleas, that they were not frivolous, irrelevant, or prolix. Dalton v. Bunn, 137 Ala. 175, 34 So. 841; L. N. R. R. Co. v. Smith, 163 Ala. 141, 50 So. 241. If, however, as asserted by defendant, pleas 2 and 3 appearing in the record, were the ones stricken, no reversible error could result, for as said on former appeal of these very pleas no facts are alleged which are not available under the general issue. Huntsville Knitting Mills v. Butner, supra ( 194 Ala. 325, 69 So. 960); Clarady v. Abraham, 174 Ala. 130, 56 So. 720; Bynum v. Gold, 106 Ala. 427, 17 So. 667; Richardson v. Stephens, 114 Ala. 238, 21 So. 949; Baker v. Britt-Carson S. Co., 188 Ala. 225, 66 So. 475; Garner v. Morris, 187 Ala. 658, 664, 65 So. 1000.
Under the evidence in this case it was a question for the jury whether the father of the injured minor gave instructions that the boy should not be worked at the instrumentality — the wringer — causing his injury. Huntsville Knitting Mills v. Butner, supra. The court committed no error in denying the motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; N.C. St. L. Ry. v. Crosby, 194 Ala. 338, 70 So. 7.
Charges 1 and 2, requested by the defendant, were properly refused. It was without dispute that the boy was not emancipated, and that the father employed him to the defendant. Practically the only question of fact at issue was whether the wringer was a part of the "rib job," and whether the plaintiff instructed the defendant not to engage his son at work on the wringer. These charges were abstract or misleading. Mobile County v. Linch, 73 So. 423; Southern Railway Co. v. Smith, 177 Ala. 367, 58 So. 429. Moreover, right of action is given by the statute (Code, § 2484) for an injury to a minor child "a member of the family," and there is no failure of evidence that said minor was a member of plaintiff's family at the time his injury was sustained. In addition, charge 2 singled out and gave undue prominence to a part of the evidence.
198 Ala. 57.
The twenty-third assignment of error is based on the refusal of defendant's written charge No. 6. The charge is abstract, in that the hypothesis therein contained — "If the jury find from the evidence that [defendant] * * * entered into the contract with the plaintiff for the employment of his son * * * without [plaintiff's] specifying any particular work" in which the son might be engaged — is not supported by the evidence. Mobile County v. Linch, supra. Defendant insists that the charge should have been given under the authority of Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 So. 914. The effect of that decision was, that knowledge on the part of the parent that a son is employed about a mill, and failure to object thereto, does not carry the implication that the parent consents to the son's being put to dangerous work, when the parent does not know the particular work in which the son is engaged; and that the parent has the right, based on the previous employment of the son, to assume that the son "is employed on less dangerous work." Tested by this rule the charge, even if it had been supported by the evidence, would have been misleading. Warrior Mfg. Co. v. Jones, 155 Ala. 379, 46 So. 456; Dimmick Pipe Works v. Wood, 139 Ala. 282, 35 So. 885.
Assignments 25, 27, and 31 challenge rulings of the court as to the competency of certain questions propounded by plaintiff to one of his witnesses. It is settled law that the overruling of a valid objection to a question that was not answered, or was answered favorably to the party objecting, is not prejudicial error. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477; Monteith v. State, 161 Ala. 18, 49 So. 777; B. R., L. P. Co. v. Baker, 161 Ala. 135, 49 So. 755, 135 Am. St. Rep. 118, 18 Ann. Cas. 477.
The objection after answer, to the evidence, came within the rule of Seaboard Air Line v. Mobley, 194 Ala. 211, 219, 69 So. 614. The practice cannot be sanctioned, of objecting after the testimony is before the jury, when there was opportunity and failure to object to the questions that elicited it. Moreover, in this instance, no proper motion to exclude the evidence objected to was made.
The plaintiff, as a witness, detailed the terms of the agreement to his son's employment, covering the duties which his son was expected to perform, as follows:
"I consented for Mason to work on a certain machine in the mill. Mr. Estes, dyeroom boss, wanted a boy to turn ribs, and he came to the shop where I was and asked about Mason, could he get him to turn ribs. I talked with him a little and told him that he could. I told him the evening when he first spoke to me that Mason could turn ribs, and the next morning Mason went to the mill before I did. When I got there, Mr. Estes was at the gate and locking the gate, and I waited in the fleece room upstairs until Mr. Estes came and had a little talk with him. I told Mr. Estes that Mason could work on this job [rib job], but not to let him go down and work on the wringer machine."
Witness was then asked, as explanatory of this testimony, "What is turning ribs?" After making reply, the plaintiff was asked, "Are there any wheels, or any machinery about the rib business that you can come in contact with, or that can catch you or hurt you in any way?" and on objection by the defendant, plaintiff's counsel added, "Just describe machinery, and tell what is there, if anything?" Defendant again objected to the question, on the ground that it was "insufficient."
It may be that, standing alone, the addition to the question was incomplete. When, however, this addendum is referred to the former question, it is obvious that it became a part thereof, and called for proper explanatory material evidence, touching the nature of the machinery and its method of operation, and whether or not to run the machine was dangerous. Moreover, the objection to the question that it was "insufficient" does not comply with the rule as to interposing objection to immaterial evidence. L. N. R. R. Co. v. Kay, 8 Ala. App. 562, 62 So. 1014.
No error was committed in overruling defendant's objections to questions calling for a description of the wringer, and how it was operated. One of the issues in the case was whether "turning ribs" and working the wringer machine were one and the same act, or were two different acts involving different hazards. Huntsville Knitting Mills v. Butner, supra. Clearly, this evidence was for the jury, as tending to afford a basis for the conclusion of the jury of the liability vel non of defendant under the contract of employment of plaintiff's minor son. Moreover, the general objections to these questions, and exceptions to the court's rulings, without more, were not sufficient to present such rulings for review. The answers were not only not patently incomplete and irrelevant, but were responsive to the issue. A. C., G. A. Ry. Co. v. Ventress, 171 Ala. 285, 54 So. 652; L. N. R. R. Co. v. Kay, supra; Southern Railway Co. v. Jordan, 192 Ala. 528, 68 So. 418.
Assignments of error 28, 29, 30, 32, and 33 are not well taken.
No prejudicial error having intervened in the trial, the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.