Sloss-Sheffield Steel & Iron Co. v. Willingham, 6 Div. 907.

• Decision Date: 08 October 1942
• Docket Number: 6 Div. 907.
• Court: Alabama Supreme Court
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. WILLINGHAM.

10 So.2d 19

243 Ala. 352

SLOSS-SHEFFIELD STEEL & IRON CO. v. WILLINGHAM.

6 Div. 907.

Supreme Court of Alabama

October 8, 1942

Kingman C. Shelburne and Bradley, Baldwin, All & White, all of Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

LIVINGSTON, Justice.

The cause of action arose out of a collision between appellant's locomotive engine and two cars, commonly known as "hot-pots", and an automobile truck belonging to Fred W. Peinhardt, which was being driven at the time and place of the collision by appellee, A. O Willingham, the agent, servant or employee of Peinhardt.

Appellee and Peinhardt filed separate suits against appellant. On motion of appellant, the two suits were consolidated and tried jointly under and by virtue of the provisions of section 221, Title 7, Code of 1940, and resulted in a judgment for Peinhardt for damage to the truck, and judgment for Willingham for personal injuries.

On appeal both judgments were reversed and the cause remanded the decision being limited to the proposition stated that the trial court erroneously charged the jury that section 9954 Code of 1923, Code 1940, Tit. 48, § 172, had application within the city of Birmingham where the collision occurred. See Sloss-Sheffield Steel & Iron Co. v. Willingham, 29 Ala.App. 569, 199 So. 15; Id., 240 Ala. 294, 199 So. 28; Sloss-Sheffield Steel & Iron Co. v. Peinhardt, 240 Ala 207, 199 So. 33.

After the causes were reversed and remanded, and on motion of appellant, they were again consolidated and tried jointly, resulting in the judgment on which this appeal is based, and a judgment for Peinhardt which is now pending in the Court of Appeals.

Assignments of error 1, 2, 3, 44, 45, 46, 47, 48 and 49 present the same question, viz., appellant insists that when the two causes of action were consolidated the parties were entitled to be furnished by the clerk with a list of the forty-eight jurors in attendance upon the court, from which to select a jury of twelve by the parties or their attorneys alternately striking one from the list until only twelve jurors remain.

Section 221, supra, reads as follows: "When causes of like nature or relative to the same question are pending before the circuit court in counties having a population of three hundred thousand or more according to the last or any future federal census, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so."

The foregoing section was adopted by the Legislature of Alabama of 1935 (General Acts 1935, page 1010), and is a literal reproduction of section 734, Title 28, United States Code Annotated, which had been construed by the federal courts prior to its adoption by the Legislature of Alabama as section 221, supra.

Appellant insists that section 221, supra, was adopted with the construction of the federal courts of section 734, supra, in connection with section 424, 28 United States Code Annotated, dealing with peremptory challenges of jurors. For a statement of the application of section 734, supra, in connection with section 424, supra, appellant cites Bley v. Travelers Ins. Co., D.C., 27 F.Supp. 351; Betts v. United States, 1 Cir., 132 F. 228; Times Publishing Co. v. Carlisle, 8 Cir., 94 F. 762; Davis v. Jessup, 6 Cir., 2 F.2d 433; Butler v. Evening Post Publishing Co., 4 Cir., 148 F. 821; Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706; Gallaghan v. United States, 8 Cir., 299 F. 172.

But the doctrine of presumed adoption is by no means conclusive, being persuasive only. The statute adopted must be read in pari materia with other provisions of the local law, in the instant case section 54, Title 30, Code of 1940. Alabama Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311.

Section 54, supra, reads as follows: "In all civil actions triable by jury, either party may demand a struck jury, and must thereupon be furnished by the clerk with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; provided, that in all judicial circuits having not more than two judges, the court shall require to be made two lists of all the jurors in attendance upon the court, who are competent to try the case, and not engaged in the trial of some other case, which list shall in no event contain less than twenty-four jurors, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until only twelve remain on the list, the party demanding the jury commencing; and the jury thus obtained must not be challenged for any cause, except bias or interest as to the particular case."

Section 54, supra, is the only method provided by our Code for "struck juries" in civil cases, and this fact, we presume was known by the Legislature when section 221, supra, was adopted. We therefore hold that appellant was not entitled to a list containing forty-eight jurors from which to strike a jury. Any other holding, it seems, would tend to defeat the very purpose of the statute, viz., to save time, unnecessary cost and expense, simplify the work of the trial: in short, the attaining of justice with the least expense and vexation to the parties litigant. In so holding, we are not unmindful that under the facts presented by this record the suits consolidated remain separate as to the parties, pleadings and judgments. See, Ex parte Ashton, 231 Ala. 497, 165 So. 773, 104 A.L.R. 54; 1 Corpus Juris Secundum, Actions, § 107, p. 1341; Bibb, Judge, v. Reid & Hoyt, 3 Ala. 88; Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala. 448, 54 Am.Rep. 72; Richmond & Danville R. R. Co. v. Greenwood, 99 Ala. 501, 14 So. 495.

The basis of assignment of error numbered 4 is the trial court's action in overruling appellant's demurrer to replication numbered 2 to plea 3. Plea 3 alleges in substance that plaintiff, appellee, was guilty of contributory negligence in his failure to stop, look and listen before attempting to cross appellant's railroad tracks at a regular public crossing. Appellee's replication numbered 2 alleges, in substance, that appellant's tracks were embedded in and on a level with the paving of the street: that he was unfamiliar with the crossing, and did not know of the existence of appellant's tracks: that no stop, look and listen signs or any other sign designating or indicating the existence of said crossing or as a warning of the presence of said track or the approach of said train on said tracks appeared at this point: that said train was being backed over said crossing in the night, in a drizzling rain without lights and without being flagged across said crossing; and that he did not see or hear the approach of appellant's train to said crossing in time to avoid the collision.

While not committing the Court to the proposition that it was necessary to present the foregoing facts by way of special replication instead of under a general denial of the plea of contributory negligence, we hold that such facts, if true-a jury question-did relieve the appellee from the duty to stop, look and listen, and no reversible error intervened in the ruling of the trial court. Louisville & Nashville R. Co. v. Williams, 172 Ala. 560, 55 So. 218; Louisville & Nashville R. Co. v. Cunningham Hdw. Co., 213 Ala. 252, 104 So. 433; Sloss-Sheffield Steel & Iron Co. v. Willingham, supra.

The trial court refused the following written charge to appellant: "I charge you that if you are reasonably satisfied from the evidence that plaintiff suffered his alleged damages as a proximate consequence of an unavoidable accident, then and in that event you need consider the case no further and your verdict should be in favor of the defendant."

This Court has held that charges that undertake to instruct the jury that, if the injury was by reason of an unavoidable accident, there could be no recovery, are confusing, misleading and properly refused Grauer v Alabama Great...