Opinion
8 Div. 219.
October 21, 1920.
Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.
Travis Williams, of Russellville, and Joseph H. Nathan, of Sheffield, for appellant.
The mine at which plaintiff was working is not the kind of mine referred to in Gen. Acts 1915, p. 193, and hence the affirmative charge should have been given as to count 1. 199 Ala. 132, 74 So. 230. The court erred in failing to admit the written statement, and in refusing to permit the witness Thompson to testify as to its execution. 179 Ala. 186, 60 So. 583; 16 Ala. App. 665, 81 So. 185; 203 Ala. 131, 82 So. 161.
William L. Chenault, of Russellville, for appellee.
Acts 1915, p. 193, amending section 1035, Code 1907, has been given a broad and liberal interpretation and covers this case. 186 Ala. 192, 65 So. 177, Ann. Cas. 1916E, 99; 199 Ala. 132, 74 So. 230; 16 Ala. App. 665, 81 So. 185; 203 Ala. 131, 82 So. 161. The question is not what the employer believed about the age of the child, but how old the child was. 179 Ala. 186, 60 So. 583.
The first assignment of error insisted upon is the refusal of the trial court to give the defendant's requested charge 3. At the outset it is sufficient to say that this charge was, in effect, fully covered by given charges 1 and 2, as they are duplicates of refused charge 3 as to counts 1 and 3, respectively, the only two counts under which the case was tried. Counsel argue the case as if the defendant had requested and should have been given the general affirmative charge. Refused charge 3 was not the general affirmative charge, in that it uses the word "may" instead of "must." If, however, such a charge had been asked in proper form, we could not put the trial court in error for refusing the same, or intelligently pass upon such ruling under the present condition of the record. The record shows that the original complaint consisted of counts 1 and 2, that it was subsequently amended by striking out count 2 and adding amended count 3, and that the case was tried upon counts 1 and 3; yet amended count 3 does not appear anywhere in the record. It is proper to suggest, however, that the act of 1915 (page 193) not only amends section 1035 of the Code of 1907 as to the age limit of the minor employé in or about a mine, but by subdivision 11 of section 6 broadens or enlarges places so as to include what might be termed an upground as well as an underground mine, as it uses the word "quarry" also, and if the place from which the ore was being extracted was not an underground mine so as to come within the influence of section 1035 of the Code, as construed in the case of Sloss-Sheffield Co. v. Bearden, 199 Ala. 132, 74 So. 230, but was being extracted from an upground pit or depression for use, as distinguished from merely removing the same for purposes of excavation or leveling, it would no doubt be an iron ore quarry within the meaning and purview of the act of 1915. Guffey v. Murrel, 127 La. 466, 53 So. 705. While the act of 1915 (page 193) was passed before the rendition of the opinion in the case of Sloss-Sheffield Co. v. Bearden, 199 Ala. 132, 74 So. 230, the cause of action arose prior to the passage of same, and consequently it was not treated or considered in said case.
It is well settled that hearsay evidence is admissible to prove pedigree, and this term embraces not only questions of descent and relationship, but also the particular facts of birth, marriage, and death, and the time when these events may have happened. Such evidence is admissible not only from the extreme difficulty of producing any better, but is resorted to upon the interest of the declarants in all such matters of family relationship and connection. These declarations, however, whether in writing or by word of mouth, should be confined to some member of the family as distinguished from a general rumor or neighborhood reputation as to the party involved, and as a predicate therefor it must appear that the declarant has since died. Landers v. Hayes, 196 Ala. 533, 72 So. 106.
It would therefore seem that, as the parents of this plaintiff were living at the time of the trial, what purported to be their affidavit as to the plaintiff's age was not admissible under the foregoing rules as declarations by them as to the plaintiff's age; but, the plaintiff not only being a party to the cause, but having testified that he was under 16 years of age, the trial court properly admitted the paper purporting to be the affidavit of his parents in evidence for the purpose of impeaching him by his contradictory statements and declarations. In other words, having sworn that he was under 16 years of age, the fact that he had exhibited to the defendant's employé or superintendent a written document indicating that he was older would at least amount to a declaration or statement by him contrary to his testimony, and this would be true whether he had fabricated the document or it was genuine, as this would affect his sincerity and motive and the probative force of his evidence as to his age.
The plaintiff testified as to facts connected with what purported to be the affidavit of his parents, and, in effect, that the same was never made by them or delivered to them by Thompson, the justice of the peace, but was signed by said Thompson and delivered to him, the plaintiff, in the absence of his parents. The trial court therefore erred in not permitting the defendant to prove by Thompson the contradictory facts that the affidavit was made by the plaintiff's parents and delivered to them instead of its having been made and delivered under the conditions as testified to by the plaintiff. The fact that what purported to be the affidavit, which was intended by the plaintiff as a statement or representation of his age was false or genuine, and which fact was known to him, was a material factor affecting his motive or intent in using said document, and naturally affected his credibility as a witness and the force and effect of his testimony as to his age.
The judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.