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Alabama Clay Products Co. v. Mathews

Supreme Court of Alabama
Mar 13, 1930
126 So. 869 (Ala. 1930)

Opinion

6 Div. 333.

March 13, 1930.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

London, Yancey Brower and Whit Windham, all of Birmingham, for appellant.

The plea in short by consent encompasses and includes a plea of ne unques administrator. Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897; Converse Bridge Co. v. Collins, 119 Ala. 534, 24 So. 561; Cotton v. Ward, 45 Ala. 359. Where the pleading includes the issue of ne unques administrator, the burden is upon the plaintiff to prove capacity and authority as such. Sorrell v. Craig, 15 Ala. 789; 31 Cyc. 528; Enzor v. Rushton, 13 Ala. App. 550, 69 So. 909. The trial court should have given the affirmative charge as requested, whether failure of proof as to plaintiff's capacity as administratrix was specifically called to the court's attention or not. Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Isbell v. N. A. R. Co., 213 Ala. 692, 106 So. 145; Duncan v. Allen, 214 Ala. 551, 108 So. 357; B'ham. Am. Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840. One born as a result of a legal union takes his surname from his father, and such is his real surname unless or until legally changed. Petition of Snook, 2 Hilt. 566. Either party to a civil or criminal case shall have the right to examine jurors as to their qualifications, interest, or bias and as to any matter that might affect their verdict. Code 1923, § 8662; Nix v. Andalusia, 21 Ala. App. 439, 109 So. 182; Batson v. State, 216 Ala. 275, 113 So. 300. Attempts to place the fact of insurance indemnity before the jury are reprehensible, and to allow same is reversible error. Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103; Taggart v. Keebler, 198 Ind. 633, 154 N.E. 485; Simpson v. Foundation Co., 201 N.Y. 479, 95 N.E. 10, Ann. Cas. 1912B, 321; Lenahan v. Pittston C. M. Co., 221 Pa. 626, 70 A. 884; Fell v. Kimble (Tex.Civ.App.) 154 S.W. 1070. The suggestion that some insurance of bonding company, and not the named defendant, will be burdened with paying the verdict rendered, is almost certain to remain in the consciousness of jurors regardless of the theoretical exclusion by the trial judge. The only remedy is to declare a mistrial. Standridge v. Martin, 203 Ala. 486, 84 So. 266; Martin v. Lilly, 188 Ind. 139, 121 N.E. 443; Stewart Co. v. Newby (C.C.A. Va.) 266 F. 287; Lucchesi v. Reynolds, 125 Wn. 352, 216 P. 12.

Perry, Mims Green, of Bessemer, for appellee.

A variance between the complaint and the proof touching the averment that appellee sued as administratrix must have been called to the attention of the trial court. Circuit Court Rules 34, 35, 4 Code 1923, pp. 906, 907; S. A. L. v. Johnson, 217 Ala. 251, 115 So. 168; Adler v. Miller, 218 Ala. 674, 120 So. 153; West v. Spratling, 204 Ala. 478, 86 So. 32; U.S. H. A. Co. v. Savage, 185 Ala. 232, 64 So. 340; Bickley Co. v. Porter, 193 Ala. 607, 69 So. 565; Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897; Davis v. Dawkins, 209 Ala. 45, 95 So. 188; Woodward Co. v. Cooper, 202 Ala. 420, 80 So. 804; Ingram L. Co. v. Wilkerson, 22 Ala. App. 479, 117 So. 4; Southern R. Co. v. Penny, 22 Ala. App. 199, 114 So. 15. Plea of general issue admits the capacity in which plaintiff sues. L. N. v. Trammell, 93 Ala. 350, 9 So. 870; Espalla v. Richard, 94 Ala. 159, 10 So. 137; Clarke v. Clarke's Adm'r, 51 Ala. 498; Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; 7 A. E. Ency. L. 381. In view of the proof that, at the time of his death and for four years prior thereto, intestate was known and went under the name of his stepfather, the evidence disclosing that he was born as Perry Johnson did not present such a variance as entitled defendant to the affirmative charge. Loveman v. B. R. L. P. Co., 149 Ala. 515, 43 So. 411; Ingram v. Watson, 211 Ala. 410, 100 So. 557; Milbra v. Sloss Co., 182 Ala. 630, 62 So. 176, 46 L.R.A. (N.S.) 274; 29 Cyc. 270. In voir dire examination, it is safer to adopt, as far as practicable, the statute in interrogating jurors. Code 1923, § 8610; Mays v. State, 218 Ala. 656, 120 So. 163. The landowner must exercise ordinary care to keep his premises in reasonably safe condition for invitees. Ala. By-Prod. Corp. v. Cosby, 217 Ala. 144, 115 So. 31; Thompson v. Alex. Cot. Mills, 190 Ala. 184, 67 So. 407, Ann. Cas. 1917A, 721; Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Golson v. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Thompson on Negl. § 1030; Mudd v. Gray, 200 Ala. 92, 75 So. 468; Scoggins v. A. G. P. Co., 179 Ala. 222, 60 So. 175; A. G. S. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76; Phillips v. Library Co., 55 N.J. Law, 307, 27 A. 478. An invitation may be inferred from evidence of a path. United Z. C. Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28. The question to, and answer by, Clay Mathews as to the fact that the man questioning witness was the insurance man, was not of such nature as to be beyond the corrective measures applied by the court. Clark-Pratt C. M. v. Bailey, 201 Ala. 333, 77 So. 995; Beatty v. Palmer, 196 Ala. 67, 71 So. 422; B. R. L. P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543.


Section 8662, new to the Code of 1923, says: "In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict."

This section was not intended as affording a ground of challenge for cause, but to enable counsel to obtain information in order to intelligently strike the jurors. It is evident, however, that the nature and character of questions to be asked were under the province of the trial court, and as to which there is considerable discretion. Rose v. Magro (Ala. Sup.) 124 So. 296. The questions here not only related to whether or not the jurors were clients at present of plaintiff's counsel, but had been at a most remote period, or whether or not there may have been an intimate or mere passive friendship; and we cannot hold that the trial court committed reversible error in this respect. True, we justified the trial court in permitting the solicitor to ask similar questions in the case of Mays v. State, 218 Ala. 656, 120 So. 163, but did not hold that a refusal would have constituted reversible error, just as we would here hold that the trial court would not be reversed had such questions been permitted.

Ante, p. 120.

The plaintiff sued as administratrix, and there was no proof of this material fact. It is true that we have several times held that the plea of the general issue was, in legal effect, an admission of this fact and relieved the plaintiff from proving same. Espalla v. Richards, 94 Ala. 159, 10 So. 137. But that rule obtains only when the general issue only is interposed or in the absence of a special plea raising this question. Here, while the general issue only was pleaded, it has the recital of leave granted to introduce evidence as to all matter that could have been specially pleaded. In dealing with a plea of this character, it has been held that, where issue is taken on such a plea, the pleader is authorized to avail himself of any special defenses to the same extent as if specially pleaded. Allen v. Standard Ins. Co., 198 Ala. 525, 73 So. 897, and cases there cited; Page v. Skinner (Ala. Sup.) 125 So. 36. The plaintiff having taken issue on this plea, it was incumbent upon her to prove that she was the administratrix of the decedent, and, failing to do so, the defendant was entitled to the general charge as requested. We are unable to hold that the error, in this respect, was cured by Circuit Court Rule 35 because the question was not specially brought to the attention of the trial court. The fact that the plaintiff was the legal representative of the decedent was essential to her right to maintain the action; it was of the very substance of her cause of action, and said Rule 35 does not apply. This is not a question of variance or of the failure of proof as to time, venue, or some point not involving a substantive right of recovery, but it goes to the very vitals of the plaintiff's right to recover. Ferrell v. Ross, 200 Ala. 90, 75 So. 466.

Ante, p. 302.

Justices SAYRE, THOMAS, and BROWN agree to the holding that the defendant was entitled to the general charge, but Justice THOMAS thinks that Rule 35 should apply. Justice GARDNER does not commit himself as to whether or not defendant was entitled to the general charge as for failure of the plaintiff to prove she was administratrix, for the reason that, if such was the case, Rule 35 should be applied. Justices BOULDIN and FOSTER do not think that the defendant was entitled to the general charge under the pleading, but, if she was, Rule 35 applies, and that the refusal of said charge was not reversible error because not brought to the attention of the trial court. The result is that a majority of the court, Justices GARDNER, THOMAS, BOULDIN, and FOSTER, hold that there was no reversible error in this respect under the application of Rule 35, while the writer, Justices SAYRE and BROWN think that the trial court committed reversible error in refusing the general charge upon this point.

The plaintiff's decedent may have been born in the name of his father, "Johnson," who died when he was about a year old, but his mother shortly thereafter married "Mathews," with whom the decedent resided until his death, and the mother gave him the name of his stepfather, and he was continuously and generally known by the name of "Mathews" up to the time of his death. "Where it is not done for a fraudulent purpose and in the absence of statutory restriction, one may lawfully change his name without resort to legal proceedings, and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth." 45 C. J. p. 381; Ingram v. Watson, 211 Ala. 410, 100 So. 557; Milbra v. S.-S. S. I. Co., 182 Ala. 630, 62 So. 176, 46 L.R.A. (N.S.) 274. There is no merit in the contention that the defendant was entitled to the general charge because of a change in the name of the plaintiff's intestate.

We do not think that the trial court committed reversible error in refusing a new trial because the witness testified that a certain party said he was an insurance man. The statement was promptly excluded, and we cannot say that the trial court was in error in holding that the prejudicial effect of same had been removed. Thames v. L. N. R. Co., 208 Ala. 255, 94 So. 487.

We now come to the main meritorious question, the liability of the defendant under the law and evidence. Considerable stress is laid upon the fact that there was no proof that the decedent was an invitee as charged in the complaint. We think the evidence and surrounding conditions afforded a reasonable inference of an implied invitation to the decedent to be where he was when injured. The parents of the child were placed in a house by the defendant, the stepfather being an employee, in very close proximity to the steam pit. Indeed, said house was used as a part or for purposes in connection with the operation of the plant until turned over to the stepfather as a residence for himself and family. There was a path and tramway between the house and the plant which were commonly used, and the exposed pit was next to or in very close proximity to the path. There was not only proof that this child, but many children, gathered at this point to play, especially on Sundays, and the jury could have inferred that these facts were known to the defendant's superintendent. The proof also shows that the opening through which the decedent fell could have been easily covered or guarded and that it could be reached without actually entering the plant proper. True, the evidence shows that the president of the defendant company forbade children going into the plant, but this may have meant within the plant proper and not the area adjacent thereto. Moreover, the president admitted that he had been about the plant but little for the past six years, and the jury could infer that the superintendent, or those in actual charge of the plant, knew of and acquiesced in the presence of children at or near the point of danger and knew of or negligently failed to discover or remedy the danger of the exposed portion of the steam pit. We think the trial court was fully justified in refusing the general charge, as upon this theory of the case, upon the authority of Ala., etc., Co. v. Cosby, 217 Ala. 144, 115 So. 31, and under the law as set forth in the opinion in the case of Thompson v. Alexander Cotton Mills Co., 190 Ala. 184, 67 So. 407, Ann. Cas. 1917A, 721.

The judgment of the circuit court is affirmed.

GARDNER, THOMAS, BOULDIN, and FOSTER, JJ., concur.

ANDERSON, C. J., and SAYRE and BROWN, JJ., dissent.


Summaries of

Alabama Clay Products Co. v. Mathews

Supreme Court of Alabama
Mar 13, 1930
126 So. 869 (Ala. 1930)
Case details for

Alabama Clay Products Co. v. Mathews

Case Details

Full title:ALABAMA CLAY PRODUCTS CO. v. MATHEWS

Court:Supreme Court of Alabama

Date published: Mar 13, 1930

Citations

126 So. 869 (Ala. 1930)
126 So. 869

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