In Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74, the appellant complained of overruling of a demurrer to a replication, which was held harmless because the true issue of the case was submitted to the jury.Summary of this case from Schwartz Motor Co. v. Bradley Real Estate Ins. Co.
6 Div. 429.
May 10, 1917. Rehearing Denied June 14, 1917.
Appeal from City Court of Birmingham; John C. Pugh, Judge.
Percy, Benners Burr, of Birmingham, for appellant. Hugo L. Black, of Birmingham, for appellee.
This is the second appeal in this cause. See report of first appeal ( 192 Ala. 576, 69 So. 4).
The action was tried on issues tendered by counts 1 and 5. Each count sufficiently averred that at the time of plaintiff's alleged injury he was acting within the line and scope of his employment with defendant. Ala. Fuel Iron Co. v. Ward, 194 Ala. 242, 69 So. 621; St. L. S. F. R. Co. v. Sutton, 169 Ala, 389, 401, 55 So. 989, Ann. Cas. 1912B, 366.
Count 1 was drawn to state a cause of action under the first subdivision of the Employers' Liability Act (Code, § 3910), and attributes plaintiff's injuries proximately to a defect in the ways, works, machinery, or plant connected with, or used in the business of the defendant, or, more specifically stated, to the fact that "the roof of the mine in which plaintiff was working was defective." The count was not subject to the challenge of the demurrer. Clinton Mining Co. v. Bradford, supra, 192 Ala. 589, 69 So. 4; Sloss-Shieffield Co. v. Terry, 191 Ala. 476, 67 So. 678; Little Cahaba v. Gilbert, 178 Ala. 515, 59 So. 445; Tutwiler, etc., Co. v. Farrington, 144 Ala. 157, 39 So. 898.
Count 5 charged the defendant with a wanton wrong, and demurrers thereto were overruled. As shown by the judgment entry of March 6, 1915, the defendant reassigned its demurrers to the complaint as amended, and to each count thereof, and also filed "additional demurrers by separate paper." We have not found the demurrers last filed. We are of the opinion that the count was not subject to the demurrers assigned to it. Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921; Dwight Mfg. Co. v. Holmes, 73 So. 933; T. C., I. R. R. Co. v. Moore, 194 Ala. 134, 69 So. 540. The case of T. C., I. R. R. Co. v. Smith, 171 Ala. 251, 260, 261, 55 So. 170, cited by appellant, has no application. It was pointed out in the opinion that the mine may have had more than one entry, and that, construed most strongly against the pleader, the complaint was indefinite. Sloss-Sheffield Co. v. Terry, supra; Sloss-Sheffield Co. v. Capps, 182 Ala. 651, 62 So. 66.
198 Ala. 590.
It is established in this state that a plea of contributory negligence is not sufficient if it merely states a conclusion of law; that it must aver the facts constituting the negligence, and the facts so averred must be such that the conclusion of negligence follows therefrom as a matter of law. Dwight Mfg. Co. v. Holmes, 73 So. 933,fn1 and authorities there collected; Pollock on Torts, 365.
Plea 3 was held insufficient as an answer to count 1. The effect of this plea, among other things, was to aver: (1) That at the time plaintiff sustained his injuries he was engaged in mining ore as an employé of the defendant; (2) that while so engaged a piece of rock became loose and was likely to fall; and (3) that this fact was known to plaintiff. Thus a knowledge of the defect, not of the danger, was charged to plaintiff. The plaintiff's duty was averred to have been, either to pull said rocks down, or to notify defendant's mine boss that said rock was loose, and not to go under it until a timber had been set thereunder by defendant's agent. The negligence sought to be charged to plaintiff by the plea is thus epitomized:
"But notwithstanding said duty plaintiff, when in the exercise of reasonable care he would have known the danger or risk he was thereby incurring, negligently went under said loose rock which fell, causing the injury of which he complained."
It is noted that the plea charges the duty to the plaintiff in the alternative, either to remove the rock himself or to notify defendant's mine boss or timber man of its condition. It is not averred that plaintiff did not discharge this duty of notifying defendant's agent of the defective condition of the rock or slate in the roof of the mine, nor is it averred, except by way of inference, that plaintiff did not pull the rock down, the averment being that "he negligently went under said loose rock which fell, causing the injury." Under this plea the plaintiff may have fully discharged his duty, on the discovery of the defect, by promptly notifying the defendant's agent of the same, affording the latter a reasonable time thereafter in which to remedy the defect before going in close proximity thereto; and yet the injury may be the proximate cause of the negligent failure of the defendant's agent, after such notice, to promptly remedy the defect or to remedy the same within a reasonable time thereafter.
The effect of the plea was to charge plaintiff with a knowledge of the defective condition, not a knowledge of the danger, nor that it was open and obvious. Wilson v. Gulf States Steel Co., supra; Dwight Mfg. Co. v. Holmes, supra; Porter v. T. C., I. R. R. Co., 177 Ala. 406, 59 So. 255; Birmingham, etc., Co. v. Saxon, 179 Ala. 136, 59 So. 584. In Reynolds, as Adm'x, v. Woodward Iron Co., 74 So. 360, it was declared that the effect of the proviso or amendment to section 3910, found on page 602 of the Code, was to relieve the servant from the imputation of contributory negligence or assumption of risk predicated on the fact of his remaining in the service after knowledge of the defect or negligence, in an action by an employé who did not commit the negligent act causing the injury and upon whom the duty to remedy the defect did not rest; but it did not relieve such employé of the duty to give information of such defect or negligence when he knows of it and the master or superior employer has no notice or knowledge thereof. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Standard Port. Cement Co. v. Thompson, 191 Ala. 444, 67 So. 608; Clinton Co. v. Bradford, supra; Sloss-Sheffield Co. v. Stapp, 195 Ala. 340, 70 So. 267. The plea in Stapp's Case alleged (not by way of alternative averment as in the instant plea) that the plaintiff was the one person to whom the master intrusted the duty of seeing that the ways, works, machinery, or plan, in and about said mine, was in proper condition, and that his negligent failure to discharge this duty proximately caused his injury. The demurrer to the plea was properly sustained.
199 Ala. 231.
Assignments 8 to 12, inclusive, relate to the overruling of demurrers to certain of plaintiff's replications. As appearing in the caption, the replication was offered as reply to pleas 6, 7, 8, 9, and 10; in the body thereof, as answer to "the matters and things set forth in pleas 7 and 10." Thus it is clear that the replication was filed as an answer to pleas 7 and 10, and not to pleas 6, 8, and 9, and that it should have been so considered.
We are not without decisions to the effect that such clerical errors in pleading may be corrected by the context. A judgment has been referred to the complaint (Kyle v. Caravello, 103 Ala. 150, 15 So. 527); a recital in a bill of exceptions, that the defendant excepted, held to show by the context that it was the plaintiff who excepted (Schuessler v. Wilson, 56 Ala. 516); and the caption of a judgment entry to have corrected another part of the record (Smith v. Branch Bank, 5 Ala. 26). Clerical errors are not alone those which the clerk makes. They include all such, being matters of record, as intervene in the progress of a cause, whether committed by the court, or by counsel, to which judicial sanction or discretion cannot reasonably be said to have been applied. Ford v. Tinchant, 49 Ala. 567; Vaughan v. Higgins, 68 Ala. 546; Hastings v. Ala. State Land Co., 124 Ala. 608, 26 So. 881. Moreover, it is reasonably plain that the replication was so treated by the trial judge in his charge. Talley v. Whitlock, 199 Ala. 28, 73 So. 976.
The averment of fact contained in the replication was:
"That there was no duty on plaintiff to notify defendant of the dangerous defects set forth in said plea for the reason that defendant or some person in the service or employment of the defendant superior to plaintiff already knew of said dangerous defect set forth in said plea."
As to plea 7, this was but a joinder of issue thereon as to knowledge by defendant of the defect.
As to plea 10, it likewise supports the complaint on the question of knowledge of the defect by the defendant. That is to say, confessing that plaintiff did not give the notice of the defect, but notwithstanding this failure, he was relieved from the performance of this duty to notify by the averment that it would be useless so to do, since the defendant well knew it, or some person in the service or employment of the defendant superior to plaintiff already knew of said dangerous defect set forth in said plea and complaint. The replication was in the nature of a confession and avoidance of pleas 7 and 10. Gould on Pl. (Will's 6th Ed.) p. 90; Kinkead v. McCormack, etc., Co., 106 Iowa, 222, 76 N.W. 663; Olson v. Tvete, 46 Minn. 225, 48 N.W. 914; Craig v. Cook, 28 Minn. 232, 9 N.W. 712. In the McGowan Case, infra, as in the instant case, the plaintiff filed a replication to defendant's plea, that defendant already knew of said defects, and on a discussion of the ruling on said demurrer, Chief Justice Anderson declared that the law does not require the doing of a useless thing, and that it was not necessary for the plaintiff to notify the defendant if the defendant already knew of the same, even though the employé may not have been aware that the master knew of the defect. Southern Railway Co. v. McGowan, 149 Ala. 440, 43 So. 378. Moreover, the demurrers were directed to the replication, as if it was a reply to pleas 6, 7, 8, 9, and 10, and did not specify the objection to the replication as answer to plea 10. It may be that the court's ruling was justified on this ground. However, in Vance v. Morgan, 198 Ala. 149, 73 So. 406, Mr. Justice Somerville said:
"Conceding * * * that the plea does not invoke with technical precision the complete rule of duty which the law casts upon a traveler who has notice of the presence of a dangerous excavation, nevertheless, the oral charge of the trial judge very clearly and correctly presents that duty to the jury as the decisive issue."
So in the instant case, the trial judge properly instructed the jury of the duty of the plaintiff and the defendant under their respective pleadings, and specifically under the replication in question. So if the ground of demurrer to the replication was specific (Wikle v. Johnson Laboratories, 132 Ala. 268, 31 So. 715; Code, § 5340), and there was error in overruling such demurrer, this did not affect the true issue of the case submitted to the jury by the charge of the court (Sup. Ct. rule 45 [175 Ala. xxi, 61 South. ix]; Best Park Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417; Vance v. Morgan, supra).
Assignments of error 13 to 26, and 38 and 39, challenge the action of the court in qualifying the jury. The jury were excluded from the courtroom, and during their absence evidence was admitted to show the interest, in the result of the trial, of a designated insurance company. Being satisfied that such insurance existed in favor of the defendant, the court properly qualified the jurors as to their interest in or connection with said insurance company. The duty of the court, and of counsel, in the qualifying of jurors on such motions, was recently announced in Citizens' Light, Heat Power Co. v. Lee, 182 Ala. 561, 62 So. 199; Beatty v. Palmer, 71 So. 422; Sov. Camp, etc., v. Ward, 71 So. 404; U.S. Cast Iron Pipe Foundry Co. v. Warner, 198 Ala. 595, 73 So. 936.
196 Ala. 67.
196 Ala. 327.
We have examined the several exceptions to the introduction of evidence, and find no merit in them. No good purpose would be subserved by a detailed discussion of each, however willing we may be to so treat them.
The argument of counsel for plaintiff was no more than an illustration, in argument, of the effect of general efficiency. True, the remark might well have been excluded, but it did not bring the case within the application of the rule of injury declared in Moulton v. State, 74 So. 454; Jackson Lumber Co. v. Trammell, 74 So. 469; B. R. L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543.
199 Ala. 411.
199 Ala. 536.
There was evidence to support the plaintiff's charge of negligence, as averred under each count, and questions for the jury were thus presented. Amerson v. Corona Coal Coke Co., 194 Ala. 175, 69 So. 601. Written charges "A," 3, 4, and 18 were properly refused; and in the giving of plaintiff's given charges 26, 28, and 29 no error was committed. Defendant's charge No. 6 was abstract, in that the name used in the latter paragraph thereof was not that of plaintiff.
The evidence showed that plaintiff was not an independent contractor, but an employé of the defendant. One who represents and carries out the will of the master in the prosecution of the work, not only as to the result to be accomplished, but also as to the means to be employed, is a servant, and not an independent contractor. Plaintiff's written charge No. 25, to this effect, was properly given by the court; and no error was committed in the refusal of defendant's written charge No. 13.
Several of the defendant's requested charges were properly refused by the court for the reason that an acquittal was predicated on the contributory negligence of the plaintiff, and said charges were not limited in application to count 1. Contributory negligence of plaintiff was not an answer to count 5, and the several charges of contributory negligence should have been properly limited to the count to which they had application. Moreover, the oral and special charges were presented for our consideration as a part of the record (Capital Security Co. v. Owen, 72 So. 8; Dorough v. State, 14 Ala. App. 110, 72 So. 208; Chappell v. State [App.] 73 So. 134; Canto v. State [App.] 73 So. 826 ), and may be considered together in determining whether a reversible error was committed by the court in its instruction to the jury. By the act of September 25, 1915, the refusal of a charge, notwithstanding the charge to be a correct statement of the law, is declared to be no cause for a reversal on appeal, provided it appears that the same rule of law is substantially and fairly given to the jury in the court's general charge, or in charges given at the request of parties. Gen. Acts 1915, p. 815; Reynolds v. State, 72 So. 20; Randall v. State (App.) 72 So. 214. We have examined the oral charge in connection with the several refused charges seeking to instruct the jury as to the contributory negligence of the plaintiff, and find that the jury were substantially and fairly instructed as to this issue as presented by the pleadings in and to the first count of the complaint. We need indulge no further detailed discussion of the several refused charges presenting this question.
196 Ala. 385.
196 Ala. 586.
14 Ala. App. 122.
The statute does not impose upon the employé the duty to notify the employer or master, who has notice or knowledge of the defect that caused the injury. There was no error in giving plaintiff's written charge No. 27. Southern Railway Co. v. McGowan, supra.
It results from the foregoing that the judgment of the city court of Birmingham must be affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.