Opinion
2 Div. 717.
November 10, 1921.
Appeal from Circuit Court, Bibb County; F. Lloyd Tate, Judge.
David S. Anderson and Frank Dominick, both of Birmingham, and J. T. Ellison, of Centerville, for appellant.
The court erred in its oral charge to the jury, relative to the duty of the defendant to the plaintiff's intestate. 93 Ala. 418, 9 So. 720; 85 Ala. 269, 4 So. 701; 101 Ala. 488, 13 So. 793; 90 Ala. 5, 7 So. 823; 167 Ala. 249, 52 So. 827; 14 Ala. App. 232, 69 So. 311; 186 Ala. 160, 64 So. 753. The duty of the master with reference to a defect is the same at common law as under the statute. 163 Ala. 244, 50 So. 926; 85 Ala. 269, 4 So. 701; 181 Ala. 552, 61 So. 924; 16 Ala. App. 578, 80 So. 152; 95 Miss. 611, 49 So. 835.
The court erred in its charge as to contributory negligence. 33 Fla. 217, 14 So. 730, 39 Am. St. Rep. 127; 124 Ala. 372, 26 So. 880; 192 Ala. 576, 69 So. 9; 10 Michie's Dig. 577. It was the intestate's duty to timber or take down the dangerous rock, and in doing so the danger was evident. 1 Ala. App. 124, 55 So. 931; 193 Ala. 639, 69 So. 78; 96 Ala. 396, 11 So. 436; 94 Ala. 143, 10 So. 87; 159 Ala. 367, 49 So. 99; 16 Ala. App. 578, 80 So. 152. The court erred in its charge as to the measure of damage. 97 Ala. 165, 11 So. 887; 42 La. Ann. 705, 7 So. 897. It was the intestate's duty to examine the roof before going to work thereunder. 202 Ala. 3, 79 So. 301; 202 Ala. 498, 80 So. 882; 177 Ala. 406, 59 So. 255; 183 Ala. 127, 62 So. 536; 192 Ala. 651, 68 So. 1008; 16 Ala. App. 455, 78 So. 718.
Riddle Ellis, of Columbiana, for appellee.
Pleadings will stand as originally settled. 183 Ala. 255, 62 So. 871; 174 Ala. 657, 56 So. 1013. The oral charge of the court must be considered as a whole, and if, when so considered, it is substantially correct, excerpts therefrom will not bring about a reversal. 83 Ala. 68, 3 So. 743; 154 Ala. 65, 45 So. 680. The bill of exceptions does not contain the order of the court on the motion for new trial, and hence that matter is not presented for review. 17 Ala. App. 78, 81 So. 856; Acts 1915, p. 722. Under the evidence in this case the question of negligence was one properly submitted to the jury. 174 Ala. 616, 56 So. 997, 40 L.R.A. (N.S.) 890.
The judgment entry shows that defendant's pleas numbered 1 to 9, including several which had been eliminated by demurrers sustained, were all refiled after plaintiff amended her complaint, and that issue was joined on all of them. Under this recital, all of the pleas were in the case, notwithstanding that demurrers had been sustained to some of them when originally filed; and, in so far as any of them were supported by the evidence, it could not be disregarded by the trial court in its instructions to the jury upon the issues before them.
In stating to the jury the respective contentions of plaintiff and defendant, the trial judge clearly erred to the prejudice of defendant. It was not defendant's duty "to furnish plaintiff's intestate proper plant, machinery, ways, and works in which to work," and such an issue was not presented by the complaint. The real issue was whether or not there was a defect in the roof of the mine which "arose from or had not been discovered or remedied owing to the negligence of the defendant," etc. Owen v. A. G. S. R. Co., 181 Ala. 552, 61 So. 924.
So, also, it was not defendant's contention, under its pleas of contributory negligence, that the intestate met his death "without any fault or negligence on the part of the defendant whatever," and that statement of the issue in effect denied the theory and efficacy of those pleas entirely. If the jury accepted these statements of the issues, and concluded upon them as stated — and there is nothing to show that they did not — the result was necessarily a false verdict.
That part of the charge numbered 5 was erroneous in that it authorized a verdict for plaintiff under conditions which, if defendant's second plea was true, would not entitle plaintiff to a verdict. Maddox v. Chilton Mdse. Mfg. Co., 171 Ala. 216, 55 So. 93; Warrior River Coal Co. v. Thompson, 193 Ala. 639, 69 So. 76. The charge excluded the plea from consideration, and was necessarily prejudicial.
That part of the charge numbered 7 is erroneous for the reason just above stated, viz. if intestate was the servant whose duty it was to investigate the condition of the roof in question, and make it safe, then defendant was under no duty to do so by any other servant, and its neglect to do so would not render it liable for the result here complained of; an issue presented by the second plea, which was substantially supported by some of the testimony. It is erroneous also in predicating liability upon the mere failure of defendant to use reasonable care in discovering the defective condition of the roof, without regard to the question of its negligence in remedying that condition. Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; U.S. Rolling Stock Co. v. Weir, 96 Ala. 396, 11 So. 436; Tuck v. L. N. R. R. Co., 98 Ala. 150, 12 So. 168; L. N. R. Co. v. Lowe, 158 Ala. 391, 48 So. 99.
The same criticisms apply to that part of the charge numbered 9.
Inasmuch as the American mortality tables are not conclusive proof of the expectancy of human life in particular cases, but are admissible simply as evidence to which the jury may look in connection with other relevant facts (B'ham Mineral R. Co. v. Wilmer, 97 Ala. 165, 11 So. 887; Mary Lee C. R. Co. v. Chambliss, 97 Ala. 171, 11 So. 897), the statement of the trial judge that there was no dispute that intestates' expectancy was 40 years was clearly erroneous, and very probably prejudicial.
It is insisted for the appellee that, when the oral charge is read as a whole, the portions excepted to cannot be held as erroneous. It is true that there are statements in the charge which present some of the issues correctly, but the faulty statements predominate, and we are satisfied that the jury were misled as to the issues and principles upon which they were to render their verdict. Where all the parts of a charge, when read together, are consistent with legal propriety, the fact that one part, considered alone, is incomplete or misleading, will not ordinarily justify a reversal of the judgment. But when the parties present complete statements applicable to the issues, which are wholly repugnant to each other, though some of them are correct, the erroneous statements, if material and prejudicial, must work a reversal of the judgment, since it can never be known which of the conflicting instructions impressed the jury the more, or which of them they followed.
It is insisted, also, that, even if the parts excepted to by defendant contained erroneous statements, yet the exceptions were too broad, in that they included in the units excepted to some statement or statements that were correct, as held in Gilley v. Denman, 185 Ala. 561, 64 So. 97; Shirley v. Ezell, 180 Ala. 352, 60 So. 905, and many other cases.
That principle, however, is not to be so applied as to require the exceptor to split into fragments a complete statement, though it may contain dependent clauses which, standing alone, and stated independently, would be entirely correct. On the contrary, it is proper to include in the matter excepted to any part of the context which is dependent, and which enters into the main statement, and is necessary to its completeness and intelligibility.
Thus tested, the excerpts from the oral charge above reviewed cannot be saved against the exceptions upon the principle invoked.
For the errors noted, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.